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holding that Dr. Bivens’ statements in that case did not have the effect of directly opining on the complaining witness's veracity, in part, because Dr. Bivens was not familiar with any facts of the case and had not spoken to any of the witnesses
Summary of this case from State v. EngelbyOpinion
SCWC-14-0000355
08-28-2017
STATE of Hawai'i, Respondent/Plaintiff-Appellee v. William MCDONNELL, Petitioner/Defendant-Appellant
Craig W. Jerome, for petitioner. Stephen K. Tsushima, Honolulu, for respondent.
Craig W. Jerome, for petitioner.
Stephen K. Tsushima, Honolulu, for respondent.
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., WITH POLLACK, J., DISSENTING, WITH WHOM WILSON, J., JOINS
OPINION OF THE COURT BY RECKTENWALD, C.J.William McDonnell was found guilty of sexually assaulting his minor daughter (Minor) in November 2013. On appeal to the Intermediate Court of Appeals (ICA), McDonnell argued that the family court improperly admitted the testimony of the State's expert witness, Dr. Alexander Bivens. Dr. Bivens testified with regard to the dynamics of child sexual abuse, including delayed reporting and underreporting by victims of abuse, and "grooming" techniques typically used by abusers. Bivens' testimony included statistics regarding how often abuse occurs in the child's home, and how frequently it involves individuals who are known to the child. McDonnell argued that Dr. Bivens' testimony was irrelevant, was unduly prejudicial, and improperly profiled McDonnell as a child molester. The ICA affirmed McDonnell's conviction, and he now seeks review in this court.
This case requires us to consider how expert testimony can properly assist a jury in understanding the relationship between victims of child sexual abuse and their abusers. As we explained in State v. Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990), "sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse[.]"
We conclude that the family court did not abuse its discretion in admitting most of Dr. Bivens' testimony since the testimony helped explain the interaction between Minor and McDonnell, and its probative value outweighed its prejudicial effect. While we further conclude that the statistical evidence should not have been admitted, that error was harmless beyond a reasonable doubt.
Accordingly, we affirm the ICA's judgment on appeal.
I. Background
McDonnell was charged with three counts of sexual assault in the first degree (Counts I, II, and III) and three counts of sexual assault in the third degree (Count IV, V, and VI) in the Family Court of the First Circuit for six separate acts that occurred on or about November 1, 2012.
Hawai'i Revised Statutes (HRS) § 707-730(1)(b) (Supp. 2009) provides:
(1) A person commits the offense of sexual assault in the first degree if:
....
(b) The person knowingly engages in sexual penetration with another person who is less than fourteen years old[.]
HRS § 707-732(1) (Supp. 2009) provides:
(1) A person commits the offense of sexual assault in the third degree if:
(a) The person recklessly subjects another person to an act of sexual penetration by compulsion;
(b) The person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person;
(c) The person knowingly engages in sexual contact with a person who is at least fourteen years old but less than sixteen years old or causes the minor to have sexual contact with the person; provided that:
(i) The person is not less than five years older than the minor; and
(ii) The person is not legally married to the minor[.]
The Honorable Randal K.O. Lee presided.
A. Trial Proceedings
1. Motions in Limine
McDonnell filed a motion in limine asking the family court to exclude Dr. Bivens' testimony as irrelevant and overly prejudicial. In response, the State filed a motion in limine asking the court to admit Dr. Bivens "as an expert witness on the dynamics of child sexual assault."
McDonnell filed a second motion in limine asking that the court exclude evidence regarding the "general area of the dynamics of child sexual assault" as "irrelevant, confusing or misleading" under HRE Rules 401 and 403
HRE Rule 401 defined "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
. He noted that Dr. Bivens planned to testify to "actions said to be commonly performed by the so-called typical sexual abuser and the typical characteristics of a sexual abuser, i.e., 'profile evidence,' as exhibited in the 'abuse process' and 'grooming process.' " He argued that such expert testimony was not relevant, had the potential to bolster Minor's credibility, and risked profiling him as a sex offender.
HRE Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The family court held a hearing on the parties' motions in limine. In response to defense counsel's arguments that Dr. Bivens' proposed testimony was based on "statistics for studies which the defendant's not a part of and has [sic ] nothing to do with this case," the family court stated:
Well, isn't it the jurors['] credibility to determine credibility? Because the jurors going to be instructed that the expert testimony can be disbelieved by them, okay. And doesn't that goes [sic ] to credibility of the witness, such as like, for example, your client is saying, well, you know, this person has a motive to accuse me of these crimes and, therefore, you want all these letters and e-mails come in, wouldn't Dr. Bivens be the same? His credibility is on trial.
The family court ruled that Dr. Bivens would be allowed to testify because testimony on the "phenomena of child abuse" is relevant under Batangan. The court noted that, if Dr. Bivens testified to statistics, the defense could "challenge him on those studies."
2. Trial Testimony: Minor and Mother
At trial, the State presented Minor and McDonnell's wife, Minor's mother (Mother), among other witnesses. Minor was thirteen years old at the time of trial.
Mother testified that she and Minor typically slept in a separate bedroom than McDonnell. She testified that Minor fell asleep in McDonnell's bedroom on November 19, 2012, and that McDonnell said not to wake her.
Minor testified that, while she slept in McDonnell's bed that night, she woke up around 2:00 a.m. because she felt a hand on her thigh. Minor testified that McDonnell moved his hand into her underwear, rubbed her vagina, and inserted a finger into it. Minor testified that she "sat there dumbstruck" and "wanted it to stop." She testified that she turned her back to McDonnell, but he did not stop, so she left the room.
Minor testified that she went into the bedroom where Mother was sleeping, but did not wake Mother up because she had to work in the morning. Minor testified that, when she woke the next morning, Mother had already left for work. Minor testified that, later that day, she told Mother that McDonnell "had touched [her] that night."
Minor also testified that she wrote a note that day stating that her father had touched her inappropriately and that she left the note in the glove compartment of McDonnell's car. After Minor reported the abuse in January 2013, police searched the car but did not find the note. Minor testified that she found the note and gave it to Mother in March 2013.
Mother testified that she then talked to McDonnell about what Minor told her. Mother told McDonnell "don't do that again because it's a crime," and then told him to "apologize to [Minor]." She testified that McDonnell responded "yes." When Mother asked McDonnell why he did it, he replied, "I don't know," and added, "I'm so sorry." After that night, they did not talk any more about the incident, and nobody called the police.
Minor testified to several other incidents where McDonnell touched her in a sexual way. For example, during one incident she "was sitting on his computer ordering this game and then he kind of came up behind me and he kind of like groped my boobs." Minor also testified that McDonnell gave her a "sexual hug" where he "put his hands like down my pants and ... touch[ed] my butt." In another incident, Minor testified that she asked for a foot massage, and McDonnell moved his hands up her leg and inserted his finger into her vagina. Another time, she asked for a back massage, and McDonnell "massage [d] my butt and then ... put his finger inside my butt hole." Minor also testified to an incident where McDonnell took pictures of her while she was undressed and "after taking the pictures he like put his mouth on my vagina and started like kissing it and sucking on it." Minor explained that she did not report the abuse to Mother at that time because "I didn't want to see my mom sad."
Minor also discussed a pattern of trading sexual contact for things that she wanted. She testified that McDonnell "came up with the term 'benefits' to get stuff I wanted." She explained that "benefits" meant that "I would willingly let him touch me to get what I wanted" and that "I wouldn't tell anybody [.]" She would generate a "wish list" of expensive items, and when she asked McDonnell to buy them, "[h]e would kind of pull out the term 'benefits.' "
Minor testified that the last time McDonnell touched her was on a Saturday or Sunday. According to Minor, McDonnell put his hands down her pants, "touched my butt and kind of like massage[d] it," and then "tr[ied] to touch my vagina." When McDonnell wanted to touch her the next day, Minor testified that she was "fed up" and "wouldn't do it," and that he said "you know one day I'll screw you." Minor became "really mad" and responded "one day I'll kill you for all the pain you caused me." She then "slammed the door in his face" and left.
The following Monday, on January 14, 2013, Minor went to school and told her school counselor about the incidents with McDonnell. Minor's school then notified the police.
On cross-examination, Minor admitted that after McDonnell was arrested, she "hacked" his computer and made purchases using his Amazon account. Minor also admitted that she told the police detective that she did not look at pornography, and that she was lying when she told the officer that.
3. Trial Testimony: Dr. Wayne Lee
The State also presented Dr. Wayne Lee, an expert regarding the "examination of individuals for alleged sexual assault[.]" Dr. Lee testified that he examined Minor on January 14, 2013, and that Minor described "an incident that occurred 48 hours previous to [the] exam between her and [McDonnell]." Dr. Lee testified that he followed "a check off list asking specific questions relative to a sexual assault." He asked Minor whether her genitals were penetrated, and Minor stated that her vagina was penetrated by McDonnell's fingers.
Dr. Lee also testified to other questions on his list:
[Dr. Lee]: The other check marks that she answered in affirmative was whether or not William McDonnell had fondled her. And she said he touched my butt, I said stop. And also with regard to masturbation, I asked her if he had tried to put his hand on her genital area. And her response was yes. And that I asked ... what she meant by that. She said he was massaging it, meaning her genital area.
[State]: And did she say anything with regard to touching or penetration of her anus?
[Dr. Lee]: When I asked about the penetration of her anus she indicated no.
Dr. Lee testified that Minor told him that the abuse had occurred "more than 20 times" since September 2012.
Dr. Lee testified that after going through the questions, he asked Minor "if there was anything else you want to add." Minor then answered that McDonnell "inserted his finger in my asshole twice" since September 2012. During the physical examination, Dr. Lee did not see any injuries or detect any physical abnormalities, but opined that fewer than half of patients "that present like Minor did" would have injuries at the time of examination.
4. Trial Testimony: Dr. Bivens
The State called Dr. Bivens, who first testified as to his qualifications. These qualificationsincluded a Ph.D. in clinical psychology, a postdoctoral fellowship in Kaua'i "in a program that serves underserved youth in the community," and experience in private practice, where he treated "maybe 700 or 800" adolescent patients. Defense counsel reasserted his objection to Dr. Bivens' testimony, and the family court overruled the objection, reasoning:
Dr. Bivens testified that his dissertation:
compared a group of convicted child molesters to a group of men who were matched for the same age and same ethnicity and same general background but were not child molesters, and then we administered test data to distinguish some of the traits that child molesters have that normal men don't have.
Dr. Bivens did not reference or rely on this dissertation in his subsequent testimony.
In following Batangan and State versus Silva... the expert testimony in Silva explained the girl's, perhaps, bizarre behavior like going back into the room. I don't know. So, over your objection, there is some relevance in some expert testimony to assist the jurors with scientific and complex type of issue.
The court thus qualified Dr. Bivens as an expert in "clinical psychology with a subspecialty in child sexual abuse."
Dr. Bivens testified that he uses the term "molestation" interchangeably with the term "sexual abuse." When asked if molestation usually involves physical force, he responded, "Well, usually not, and so probably 80 percent of the time there's not any real physical force involved." Based on the research and literature on the relationship between victims of child sexual abuse and molesters, Dr. Bivens testified that "85 percent of the time, ... the child has a pre-existing nonsexual relationship with [his or her] molester."
Dr. Bivens stated that "there's a documented phenomenon called incest when the molester is living in the child's own home is somehow affiliated with the family, whether they're a direct blood member or stepparent or an uncle that's living in the home." When asked whether "the research say[s] where child sexual abuse usually occurs[,]" Dr. Bivens responded:
A. Yes, it does. And so there are two studies that I usually rely on, large numbers of—you know, so large number meaning more than 100 molesters talking about where they commit their crimes. So 100 percent of incest offenders report molesting in their own home, and even non-incest offenders will molest in the child's own home. So it's usually in the child's home or the molester's home....
Dr. Bivens testified that "the most typical thing for a child to do when [he or she has] been molested is not tell anybody for a long time." Dr. Bivens testified about studies in which a majority of abused children delayed disclosing their abuse for over one month. He also testified about a study in which children did not disclose that their genitalia had been touched by a doctor, noting that there is "some natural tendency that children [would] not ... want to talk about that type of touching." Dr. Bivens also explained a study on over two hundred incest survivors that indicated that "they were being subjected to sexual relations to a relative, [but that] they let it go on without telling anybody for a significantly long period of time."
Dr. Bivens described studies identifying the reasons for nondisclosure by child victims of sexual assault. One study found that victims expected themselves to be blamed and therefore "were embarrassed, ... didn't want to upset anybody, and ... expected not to be believed." Another study found that victims felt scared, did not want to get in trouble, felt that no one would believe them, embarrassed, and did not want to get anybody else into trouble.
Dr. Bivens testified that two studies demonstrate that a sexually abused child will most likely report the abuse to mothers and close friends. Regarding what triggers a child to finally disclose the sexual abuse, one study identified "an anger inducing event where the child feels that [he or she is] being subjected to still more unfairness perhaps at the hands of [his or her] perpetrator or someone related to [him or her]." Dr. Bivens described another trigger is "the proximity of the offender," e.g., "if the offender leaves the child's sphere they may feel more safe, better able to disclose."Dr. Bivens was then asked to discuss the "abuse process," and he explained that there are four primary methods in which molestation is committed: "[s]educing and testing, masking sex as a game, emotional and verbal coercion, and taking advantage of a child in a vulnerable position."
According to Dr. Bivens, "[s]educing and testing refers to how a molester will establish a healthy touching relationship with a child in advance of any sexual contact." The molester then slowly incorporates sexual touching into the healthy touching relationship. The molester "tests" the child by "monitoring the child's responses for any type of startle or any type of upset."
Dr. Bivens testified that masking sex as a game is similar to seducing and testing; the only difference is that it starts with "a playful touch relationship," such as "tickling, wrestling, carrying around, [and] swinging around." Thereafter, the child molester slowly incorporates sexual touching into the playful touch relationship.
Dr. Bivens described emotion and verbal coercion as often involving a "sort of bargaining or bribing—if you give me this, I'll give you that." Dr. Bivens gave examples, like "giving gifts or giving treats," "withholding punishments[,]" or guilt tripping in order to emotionally and coercively obtain sex from the child.
Lastly, Bivens discussed "taking advantage of a child in a vulnerable position" as most often referring "to approaching a sleeping child." In those instances, most of the children are in fact awake, "but ... were playing possum because they didn't know what to do, and the sex offense continues in that fashion."
As to the completeness of the initial disclosures of sexually abused children, Dr. Bivens identified a study involving college students who had reported being molested as children:
[The college students] were simply asked: What was your initial disclosure like when you first told somebody? How much of what happened did you tell? And about 75 percent said that they just gave some very vague, you know, general descriptions of what had happened—some touching that was inappropriate, when in fact it may have been much more elaborate than that.
Another study compared the disclosures made by sexually abused children and the sexual abuse documented on confiscated video tapes. Dr. Bivens testified:
The researchers compared what the children said happened to them with what was actually captured on the videotape. And what they found was that the children, in those three days, reported roughly half of the number of incidents and also half the severity of incidents that was actually represented on the videotapes.... And so what they found is that, you know, kids who had been penetrated were not talking about being penetrated. Kids who had been forced to perform oral sex were not disclosing certain of those kinds of details. And so what we know now in that same study some additional researchers came in, and eventually many of the kids were able to get to the point where they could disclose, but it took much more than the initial three days.
Defense counsel moved to strike this testimony on incomplete disclosures, arguing that it was "extremely prejudicial" by "inviting the jury to speculate" that McDonnell did something more severe than what Minor already disclosed. The court asked whether this testimony would explain to the jury why Minor did not disclose all of the alleged instances of abuse to Dr. Lee. Defense counsel responded that the testimony may be probative in that respect, but was more prejudicial for insinuating "the rule not the exception" is that more abuse occurs than what is disclosed. The court overruled the objection, reasoning that Dr. Bivens said "it could be 50 percent accurate, 50 percent not accurate," which is not "an overwhelming percentage."
Dr. Bivens further testified that episodes of child sexual abuse "tend to be a more memorable event itself" and opined that there is "reason to believe that the memories of the event itself tend to be good." However, "the nature of those memories are consistent with other forms of traumatic memory such that the event itself loomed so large that peripheral details tend to blur." Hence, there is "tunnel memory" with respect to recollection of child sexual abuse, "where the event itself is recalled well, but ... the clothes that [the child was] wearing, maybe the time of day or ... certain things get to be blurred in the way the memory is reported on by the child."
When asked whether there is a profile to a typical child molester, Dr. Bivens answered that "there is not" and that it is not possible to look at "demographic characteristics" or "personality characteristics" to determine whether someone is a child molester. Dr. Bivens stated that "[c]hild molesters are defined by the child molestation behavior itself, not by any sort of profiling evidence or anything like that." Dr. Bivens also indicated that he was not familiar with any of the facts of the case and that he had not spoken with any of the witnesses.
During cross-examination, Dr. Bivens acknowledged that the statistics he cited during his testimony were derived from studies that did not use the same analytical framework or procedure. Dr. Bivens also testified that the studies may have had different criteria for determining which children were actually molested, and some studies would not validate whether the child's report of sexual abuse was actually true.
5. Closing Arguments, Verdict, and Sentencing
Following the State's case, the defense rested without presenting any evidence. In its closing, the State argued that Minor's and Mother's testimony demonstrated that McDonnell knowingly engaged in sexual penetration and sexual conduct with Minor. The State recounted Minor's testimony regarding the abuse and argued that Mother's testimony corroborates Minor's testimony. The State cited Dr. Bivens' testimony to explain why Minor delayed disclosing the abuse to her school counselor. The State noted that Dr. Bivens spoke about "triggers" such as an anger-inducing event and that Minor and McDonnell had gotten into an argument before she disclosed to her school counselor.
The State also presented the following witnesses: two Honolulu Police Department (HPD) evidence specialists who examined the evidence obtained from McDonnell's apartment, the director of human resources at McDonnell's workplace who testified to McDonnell's typical work schedule, Minor's counselor to whom she reported the abuse, two HPD officers who investigated Minor's case, and who searched McDonnell's car but did not recover the note Minor said she wrote on November 20, 2012, and an HPD forensic examiner who examined McDonnell's computer and camera but did not find any pornography or nude photographs of Minor.
The State also cited to Dr. Bivens' testimony about the abuse process, specifically "the emotional and verbal coercion." The State argued that McDonnell conditioned Minor into a " 'this for that' type of relationship" and "manipulate[d] her to let him do what he wanted" by giving her things. The State stated that "Dr. Bivens talked about that."
Defense counsel argued that the evidence presented by the State was insufficient to sustain the charges of sexual assault. Defense counsel argued that "the evidence begins and ends" with Minor and that "her credibility, how much you believe her, is everything in this case." Defense counsel stated that "[w]e would all like to believe that a child wouldn't lie, that a child wouldn't make up this kind of thing, let alone your child[,]" but that "[w]e know sometimes kids lie." Defense counsel noted that "Dr. Bivens even acknowledged ... that sometimes there may be people in the studies of kids who make false allegations."
Defense counsel argued that Minor's story "doesn't make any sense with the physical evidence." Defense counsel argued that Minor's testimony had several inconsistencies and noted that Minor lied about watching pornography and hacked McDonnell's computer after he was arrested to "go on a shopping spree[.]"
Defense counsel argued that Minor's testimony was not consistent with Dr. Bivens' testimony "about testing and nonsexual touch" because Minor had asked for massages from McDonnell. Defense counsel also emphasized that Dr. Bivens "knows nothing about the case," has "no publications in the area," and discussed studies using "some flaws and inconsistent methods." Defense counsel argued that Mother is "just dead set on backing up [Minor's] story out of her ... feeling of loyalty and love for her."
In rebuttal, the State argued that Minor's inability to recall certain details did not indicate that Minor was lying. The State noted that "Dr. Bivens told you children remember the main facts, the main stuff that happens when they're molested[,]" but might not remember "what they were wearing" or "an exact date[.]"
The jury found McDonnell guilty as charged in Count I of sexual assault in the first degree and counts IV-VI of sexual assault in the third degree. The family court sentenced McDonnell to a term of imprisonment of twenty years.
The jury found McDonnell not guilty of Counts II and III of sexual assault in the first degree.
B. Appeal to the ICA
On appeal, McDonnell argued, among other things, that the family court erred in allowing Dr. Bivens to testify because his testimony was inadmissible under HRE Rules 401, 403, and 702.
The ICA held that Dr. Bivens' testimony was properly admitted, dividing the testimony into three categories. First, the ICA found that the court did not err in allowing Dr. Bivens' testimony about delayed reporting and tunnel memory by child victims. The ICA found that Minor reported two of the alleged incidents soon after they occurred, but also testified to other incidents that were not immediately reported. The ICA noted that Dr. Bivens' description of tunnel memory gave the jury context in which to evaluate Minor's giving of "different accounts as to the date of the initial abuse."
Second, the ICA found that the family court did not err in admitting Dr. Bivens' testimony regarding incomplete reporting. The ICA reasoned that the testimony was helpful in understanding "not only [Minor's] silence after first disclosing to her mother, but also why she may not have described any details of the abuse initially."
Third, the ICA determined that Dr. Bivens' testimony regarding the abuse process did not constitute improper profile evidence. The ICA stated that the testimony was "relevant to explain that a child may delay reporting because the molester has normalized the abuse." The ICA found that Dr. Bivens did not profile McDonnell as a sex offender, noting that Dr. Bivens "told the jury he did not know the facts of the case" and made clear that there is no profile for "a typical child molester."
Because the ICA found Dr. Bivens' testimony to be admissible, the ICA affirmed the family court's judgment as to Count I.
The ICA vacated the convictions on Counts IV-VI and remanded those counts for dismissal without prejudice, finding that the State failed to allege an attendant circumstance that was an element of the offenses charged in the counts.
In his concurring and dissenting opinion, Judge Reifurth agreed with regard to the testimony on incomplete disclosures and delayed reporting. He dissented with respect to the "abuse process" testimony because its probative value was outweighed by its potential prejudicial effect. He warned that "courts must be particularly careful to consider the degree to which common characteristic testimony of this sort undermines the foundational principles of our criminal justice system." He concluded that the family court's error in admitting the testimony was not harmless because the evidence against McDonnell was not overwhelming.
II. Standard of Review
A. Admission of Opinion Evidence (Expert Testimony)
"Generally, the decision whether to admit expert testimony rests in the discretion of the trial court. To the extent that the trial court's decision is dependant upon interpretation of court rule[s], such interpretation is a question of law, which [the appellate] court reviews de novo." Barcai v. Betwee, 98 Hawai'i 470, 479, 50 P.3d 946, 955 (2002) (citations omitted).
III. Discussion
On certiorari, McDonnell presents the following question:
Whether the ICA gravely erred in holding that the Family Court did not err in allowing the testimony of Dr. Alexander Bivens, the State's expert on the dynamics of child sexual abuse.
McDonnell makes three arguments challenging the introduction of Dr. Bivens' testimony. First, he argues that the ICA gravely erred because Dr. Bivens' testimony on delayed reporting, tunnel memory, incomplete disclosure, and the abuse process was irrelevant. Second, he contends that the probative value of the testimony on incomplete disclosure was substantially outweighed by the danger of unfair prejudice. Lastly, he asserts that Dr. Bivens' testimony on the abuse process and use of statistics constituted improper profile evidence and created a danger of unfair prejudice.
We conclude the ICA correctly held that the family court did not abuse its discretion in admitting the testimony of Dr. Bivens, with the exception of portions of the statistical evidence. , the admission of that evidence was harmless beyond a reasonable doubt.
A. The Circuit Court Exercised its Discretion in Admitting Dr. Bivens' Testimony.
As a threshold matter, we note that the circuit court clearly exercised its discretion in admitting Dr. Bivens' testimony. The Dissent disagrees, citing State v. Hern's observation that "[t]he existence of discretion requires its exercise[,] and a court fails to properly exercise its discretion when it bases a decision on categorical rules and not on the individual case before it." 133 Hawai'i 59, 65, 323 P.3d 1241, 1247 (App. 2013). Dissent at 300, 409 P.3d at 704. Hern was a consolidated appeal in which two defendants challenged the dismissal of criminal charges without prejudice. Id. at 60, 323 P.3d at 1242. For the first defendant, the trial court stated that its dismissal was "based on its 'typical practice on [HRPP] Rule 48.' " Id. at 65, 323 P.3d at 1242. For the second defendant, the trial court did not state a reason for its dismissal without prejudice. Id. at 62, 323 P.3d at 1244. The ICA vacated the trial court's judgments: Regarding the first defendant, the ICA concluded that the trial court applied a blanket rule where it should have exercised its discretion; regarding the second defendant, the ICA concluded that the record was inadequate to meaningfully review whether the trial court exercised its discretion, as transcripts from relevant hearings were missing from the record on appeal. Id. The instant case is thus distinguishable from Hern, as the circuit court did not rely on a blanket policy in allowing Dr. Bivens' testimony, and the record on appeal is adequate for this court to review its decision.
The Dissent's citation to State v. Martin, 56 Haw. 292, 535 P.2d 127, is also inapposite. Dissent at 300–02, 409 P.3d at 704–05. In Martin, the trial court "summarily rejected" a criminal defendant's motion to defer acceptance of his guilty plea, with the judge "emphasizing, as he had in the past, that he did not and would not under any circumstances consider any motion for deferred acceptance of a guilty plea." Id. at 293, 535 P.2d 127. This court reversed the trial court, holding that "[d]iscretionary action must be exercised on a case-by-case basis, not by any inflexible blanket policy of denial." Id. at 294, 535 P.2d at 128. In the instant case, the circuit court clearly considered the arguments for and against allowing Dr. Bivens' testimony, and it cannot be said that its ruling was based on an "inflexible blanket policy."
The Dissent asserts that in the present case the circuit court "based its determination on a categorical rule that Batangan deemed such evidence to be somewhat relevant and thus admissible." Dissent at 301, 409 P.3d at 705. This characterization is not supported by the transcript of the circuit court's ruling on this issue, which states: "In following Batangan and State versus Silva... the expert testimony in Silva explained the girl's, perhaps, bizarre behavior like going back into the room. ... So, over your objection, there is some relevance in some expert testimony to assist the jurors with scientific and complex type of issue." An oral ruling such as this can support multiple interpretations upon close reading, but the fact that the court referenced Batangan does not mean that it abdicated its discretion. Rather, it merely indicates that the court considered relevant precedent when it determined that Dr. Bivens' testimony was admissible.
B. Dr. Bivens' Testimony Regarding Child Victims of Assault was Relevant Under HRE Rule 702.
McDonnell argues that delayed reporting, tunnel memory, and incomplete dis closure "played no significant role in this case," and thus Dr. Bivens' testimony was irrelevant. He also argues that testimony regarding the abuse process and the accompanying statistics "were completely irrelevant to explaining any behavior on the part of Minor." McDonnell further asserts that Dr. Bivens' testimony "did almost nothing to assist the jury in ascertaining truth in relevant areas outside the ken of ordinary laity" because the record does not indicate that "[Minor's] behavior was, to average people, superficially inconsistent with the occurrence of sexual abuse or uniquely attributable to child sexual abuse rather than general stress or trauma."
The admission of expert testimony is governed by HRE Rule 702, which states:
If scientific, technical, or specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
One of the "touchstones of admissibility or expert testimony under HRE 702" is relevance. State v. Vliet, 95 Hawai'i 94, 106, 19 P.3d 42, 54 (2001). "In determining the relevancy issue, the trial courts' function is akin to the relevancy analysis adopted in applying HRE Rules 401 (1993) [ ] and 402 (1993) [ ]." Id. Expert testimony must assist the trier of fact by providing "a resource for ascertaining truth in relevant areas outside the ken of ordinary laity," and should include "knowledge not possessed by the average trier of fact who lacks the expert's skill, experience, training, or education." Batangan, 71 Haw. at 556, 799 P.2d at 51. A trial court's relevancy determination is reviewed under the right/wrong standard. State v. Pulse, 83 Hawai'i 229, 247, 925 P.2d 797, 815 (1996).
HRE Rule 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
HRE Rule 402 provides:
All relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and the State of Hawai'i, by statute, by these rules, or by other rules adopted by the supreme court. Evidence which is not relevant is not admissible.
In Batangan, this court addressed HRE Rule 702 in the context of expert testimony in child sexual abuse cases. 71 Haw. at 556, 799 P.2d at 51. The defendant in Batangan was accused of having sexual contact with his daughter, who did not report the incidents until several months after they occurred and then later recanted her allegations. Id. at 554, 799 P.2d at 50. Dr. John Bond, an expert in clinical psychology and child sexual abuse, evaluated the daughter and testified for the prosecution at trial. Id. at 554-55, 799 P.2d at 50. This court held that Dr. Bond's testimony was inadmissible because it improperly vouched for the victim's credibility, reasoning that "experts may not give opinions which in effect usurp the basic function of the jury." Id. at 562, 799 P.2d at 54.
However, the Batangan court also recognized that "sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse[.]" Id. at 557, 799 P.2d at 51 (internal quotation marks and citations omitted). Child victims can exhibit behavior "seemingly inconsistent with behavioral norms of other victims of assault[,]" such as delayed reporting and recantation of abuse allegations, which would normally "be attributed to inaccuracy or prevarication." Id. at 557, 799 P.2d at 51. "In these situations it is helpful for the jury to know that many child victims of sexual abuse behave in the same manner." Id. 557, 799 P.2d at 52. Expert testimony, therefore, can explain to the jury "the unique interpersonal dynamics involved in prosecutions for intrafamily child sexual abuse" and correct "widely held misconceptions ... so that [the jury] may evaluate the evidence free of the constraints of popular myths." Id. at 557-58, 799 P.2d at 52 (internal quotation marks and citations omitted; ellipses in original).
Thus, the Batangan court concluded that expert testimony explaining "seemingly bizarre behavior of child sex abuse victims is helpful to the jury and should be admitted," but "conclusory opinions that abuse did occur and that the child victim's report of abuse is truthful and believable" are not admissible. Id. at 558, 799 P.2d at 52 (internal quotation marks omitted).
We conclude that Dr. Bivens' testimony regarding delayed reporting, tunnel memory, and incomplete disclosure was relevant under Batangan because it assisted the jury in understanding the "seemingly bizarre behavior" exhibited by Minor and did not vouch for Minor's credibility.
With regard to delayed reporting, Dr. Bivens explained the reasons why victims may not disclose sexual abuse. He also testified to triggers that may cause victims to finally disclose the abuse, such as "an anger inducing event" involving the abuser. In this case, Minor disclosed the first incident of sexual abuse to Mother the next day, and she disclosed the final incident to a school counselor within approximately forty-eight hours. However, there was a period of approximately two months, from November 2012 to January 2013, where Minor testified to multiple incidents of abuse that went unreported until January 2013. Morever, Minor testified that she became very angry with McDonnell prior to disclosing the abuse to her school counselor. Dr. Bivens' testimony regarding delayed reporting may have assisted the jury in understanding why Minor would not have reported the abuse right away and what ultimately caused her to report the abuse in January 2013. Indeed, Batangan explicitly stated that "delayed reporting of the offenses" is the type of behavior that could be misconstrued by a jury. 71 Haw. at 557, 799 P.2d at 51.
With respect to "tunnel memory," Dr. Bivens testified that a child may recall sexual abuse so that "the event itself is recalled well, but ... maybe the time of day or ... certain things get to be blurred." This testimony was relevant because Minor gave different accounts as to the date of the initial abuse. She testified at trial that the first instance of abuse was in November 2012, but had told Dr. Lee that the abuse started in September 2012. Dr. Bivens' testimony regarding tunnel memory would therefore assist the jury in evaluating Minor's inconsistent recollection of the dates.
McDonnell argues that the tunnel memory testimony did not assist the jury in understanding Minor's behavior because Dr. Bivens testified that the tunnel memory of child victims "was not significantly different from any memory related to stress or trauma in general." This argument misstates Dr. Bivens' testimony. Dr. Bivens compared tunnel memory in child victims to "traumatic memories where a police officer has to use his weapon or traumatic memories that happen with war veterans." These are examples of extreme trauma, not "stress or trauma in general" as McDonnell asserts. The type of stress exhibited in these scenarios is not experienced by ordinary individuals and therefore would fall "outside the ken of ordinary laity." Batangan, 71 Haw. at 556, 799 P.2d at 51.
With regard to incomplete disclosure, Dr. Bivens testified that sexually abused children may not provide details regarding the full extent of their abuse. Minor testified that McDonnell inserted his finger into her vagina during the first instance of abuse, but that she only told Mother that McDonnell had "touched" her. Further, Dr. Lee testified that when he initially asked Minor whether McDonnell had penetrated her anus, she said no. However, at the end of their interview, Minor told Dr. Lee that McDonnell inserted his finger into her anus twice. There were also various types of abuse that Minor alleged at trial, but that she never reported to Dr. Lee. These include Minor's trial testimony that McDonnell "put his mouth on [Minor's] vagina and started like kissing it and sucking on it," and that, on another occasion, McDonnell "massaged" her breasts. Therefore, Dr. Bivens' testimony regarding the behavior of child sex abuse victims would assist the jury in understanding why Minor did not initially disclose the full extent of the abuse.Lastly, Dr. Bivens discussed the abuse process and the ways in which children can be coerced into submitting to sexual abuse. He explained that abusers may slowly incorporate sexual touching into healthy or playful touching, bribe the child with gifts, or take advantage of a sleeping child who would "play[ ] possum." Minor testified that the first night McDonnell abused her, she "sat there like dumbstruck." She later testified to instances in which McDonnell would start giving her a massage or hug and then move his hands to her genital area. Minor also testified to a pattern of trading sexual contact for "benefits" or things that she wanted. Therefore, Dr. Bivens' testimony would have helped explain why Minor did not actively resist the abuse, as might otherwise be expected by the jury.
McDonnell further argues that Dr. Bivens' testimony "usurped the function of the jury by creating a false impression that statistical probability supported the conclusion that Minor's testimony was credible," but this argument is unconvincing. Unlike in Batangan, Dr. Bivens' did not provide "conclusory opinions that abuse did occur and that the child victim's report of abuse [was] truthful and believable." Id. at 558, 799 P.2d at 52 (internal quotation marks omitted). In fact, at no point did Dr. Bivens testify to Minor's credibility or even mention Minor. Rather, he indicated that he was not familiar with any of the facts of the case and that he had not spoken with any of the witnesses. Morever, the jury was instructed that they were to decide how much weight to give Dr. Bivens' testimony: "Merely because such a witness has expressed an opinion does not mean ... that you must accept this opinion. It is up to you to decide whether to accept this testimony and how much weight to give to it." See State v. Sawyer, 88 Hawai'i 325, 329 n.7, 966 P.2d 637, 641 n.7 (1998) ("It is presumed that the jury adhered to the court's instruction."). Thus, Dr. Bivens' testimony did not improperly usurp the jury's function or make credibility determinations.
We therefore conclude that, in accordance with Batangan, the family court did not err in determining that Bivens' testimony regarding delayed reporting, child memory, and incomplete disclosure was relevant under HRE Rule 702.
C. The Testimony on Incomplete Disclosure was more Probative than Prejudicial.
McDonnell next argues that, even if Dr. Bivens' testimony on incomplete disclosure was relevant, "its relevance was overwhelmingly outweighed by the danger of unfair prejudice." He argues that "Bivens' testimony about studies where victims underreported the number and severity of incidents created an extreme and unwarranted danger that the jury would conclude that Minor was also probably significantly underreporting the abuse in this case." Specifically, "the jury could presume that it was statistically likely that the actual abuse that Minor experienced was more severe and more frequent than she disclosed at trial."
Even if expert testimony is relevant and admissible under HRE Rule 401, 402, and 702, it may be excluded under HRE Rule 403, which states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
When weighing probative value versus prejudicial effect in this context, a court must consider a variety of factors, including "the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility." State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992) (quotation marks and citation omitted).
"The determination of the admissibility of relevant evidence under HRE Rule 403 is eminently suited to the trial court's exercise of its discretion because it requires a 'cost-benefit calculus' and a 'delicate balance between probative value and prejudicial effect.' " State v. Balisbis ana, 83 Hawai'i 109, 114, 924 P.2d 1215, 1220 (1996). Thus, a trial court's determination under HRE Rule 403 will not be overturned unless it "clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant." State v. Matias, 74 Haw. 197, 203, 840 P.2d 374, 377 (1992) (internal quotation marks, brackets, and citation omitted).
We find that the family court did not abuse its discretion in allowing Dr. Bivens' testimony regarding incomplete disclosure.
The believability and accuracy of Minor's testimony was one of the central issues at trial. As mentioned above, testimony at trial established that Minor gave incomplete disclosures to Dr. Lee. For example, Minor initially told Dr. Lee that McDonnell had touched her genital area, but had not penetrated her anus; later she told Dr. Lee that McDonnell "inserted his finger in my asshole twice." Such seemingly inconsistent reporting might normally "be attributed to inaccuracy or prevarication" of Minor's allegations. Batangan, 71 Haw. at 557, 799 P.2d at 51. Other than Dr. Bivens' testimony, there was no other testimony to explain why Minor may have failed to initially disclose the full extent of the abuse to Dr. Lee. Therefore, the probative value of Dr. Bivens' testimony regarding the initial disclosures of sexually abused children was high. See State v. Cordeiro, 99 Hawai'i 390, 416, 56 P.3d 692, 718 (2002) (concluding that the probative value of evidence that the defendant used and sold illegal drugs was "very high" where "there was no other evidence available" to establish the defendant's motive).
Further, the potential for prejudice was not as great as McDonnell suggests. McDonnell argues that Dr. Bivens' testimony created a danger that the jury would conclude that Minor's abuse was worse than what her testimony described. However, Bivens' testimony focused on underreporting in "initial" disclosures, and did not suggest that victims would underreport at the time of trial. The State never argued that McDonnell's conduct went beyond Minor's allegations. See State v. Behrendt, 124 Hawai'i 90, 108, 237 P.3d 1156 (2010) (testimony regarding uncharged child sex abuse allegations did not cause "overmastering hostility" against the defendant "particularly since the State did not argue in closing that [the complaining witness's] age at the time of the [uncharged] contacts made [the defendant's] conduct more culpable or reprehensible"). Moreover, the court specifically instructed the jury to determine whether McDonnell was guilty of the offenses as charged, and it instructed the jury that they could not find McDonnell guilty based on "mere suspicion" or "probabilities." Ultimately, the jury acquitted McDonnell on two counts of first degree sexual assault. Thus, the jury clearly focused on the evidence in the case, as relevant to each count, and did not display "overmastering hostility" against McDonnell. Thus, there was only a remote possibility that the jury would conclude that McDonnell's conduct was worse than what Minor described and find him guilty on that basis.
As such, the family court did not "clearly exceed[ ] the bounds of reason" in determining that the prejudicial effect of Dr. Bivens' testimony on incomplete disclosure did not substantially outweigh its probative value. Matias, 74 Haw. at 203, 840 P.2d at 377. Therefore, the court did not abuse its discretion in admitting this testimony.
D. The Testimony on the Abuse Process was not more Prejudicial than Probative and did not Constitute Improper Profile Evidence.
Lastly, McDonnell argues that "Bivens' testimony regarding typical child molesters, the abuse process, and his use of statistics to substantiate his claims amounted to improper profile evidence" and was substantially more prejudicial than probative. McDonnell argues that Dr. Bivens' testimony "related to a particular class of offenders, not victims," and therefore Batangan, which addressed behaviorial norms of assault victims, does not apply here. He also argues Dr. Bivens' use of statistics "imbued [his testimony] with an air of scientific certainty" and "planted the idea that there are scientifically identifiable traits that distinguish 'child molesters' from 'normal men.' "
As an initial matter, we must determine whether McDonnell preserved this issue for appeal. The State asserts that this issue is waived because McDonnell objected to the relevance of Dr. Bivens' testimony and "did not voice a single objection to the testimony on the grounds that it was 'profile evidence.' " McDonnell responds that he objected to this issue in both his motions in limine and at the motions in limine hearing, and that he was not required to renew his objection at trial because the family court definitively ruled that Dr. Bivens' testimony was admissible.
Generally, if a party does not raise an argument at trial, that argument is deemed waived on appeal. State v. Moses, 102 Hawai'i 449, 456, 77 P.3d 940, 947 (2003). Despite the State's assertion, McDonnell clearly raised the "profile evidence" argument in his second motion in limine. He argued that Dr. Bivens' testimony regarding " 'profile evidence,' as exhibited in the 'abuse process' and 'grooming process' ", risked profiling him a sex offender. At the hearing, McDonnell argued that testimony on "grooming" would be "highly prejudicial" and not "very probative." At the close of the hearing, the family court ruled that Dr. Bivens' testimony was admissible and stated, "I'm going to deny, [McDonnell's counsel], your motion in limine to preclude Dr. Bivens." Because the court definitively ruled on McDonnell's motion, he was not required to renew his objection regarding "profile evidence" at trial. See Kobashigawa v. Silva, 129 Hawai'i 313, 321, 300 P.3d 579, 587 (2013) ( "[W]hen the trial court makes a definitive pretrial ruling that evidence is admissible, the party opposing the ruling need not renew its objection during trial in order to preserve its claim on appeal that the evidence was erroneously admitted.").
As such, McDonnell's objection was preserved on appeal, and accordingly, we address the merits of McDonnell's argument. We find that the family court did not abuse its discretion in admitting Dr. Bivens' testimony on the abuse process.
Dr. Bivens explained that abusers may slowly incorporate sexual touching into healthy or playful touching, bribe the child with gifts, or take advantage of a sleeping child who would "play[ ] possum." Dr. Bivens' testimony explained the abuse process, i.e., the behavior exhibited by some offenders and the ways in which children react to that behavior. We therefore disagree with McDonnell and the Dissent that Dr. Bivens' testimony was unfairly prejudicial because it related only to the behavior of offenders, and not victims. Dissent at 310–12, 409 P.3d at 714–16.
The need for this testimony was strong, since there was no other evidence available to explain Minor's behavior of not actively resisting the abuse, and indeed, seemingly acquiescing by engaging in a pattern of trading sexual contact for things she wanted. See Renon, 73 Haw. at 38, 828 P.2d at 1273 (courts must consider "the need for the evidence" and "the efficacy of alternative proof" in determining the probative value of evidence). As such, Dr. Bivens was appropriately permitted to testify regarding the dynamics of the relationship between child victims of sexual abuse and their abusers.
This court considered an analogous situation in State v. Clark, where the defendant was charged with attempted murder after stabbing his wife in the chest with a kitchen knife. 83 Hawai'i 289, 926 P.2d 194 (1996). Although the complaining witness initially told police that defendant had stabbed her, she recanted at trial and testified that she had stabbed herself.
On appeal, this court held that the trial court properly admitted expert testimony regarding the relationship between victims of domestic abuse and their abusers, including why "victims of domestic violence often recant allegations of abuse." Id. at 299, 926 P.2d at 204. We thus recognized that the expert testimony would help the jury understand the complaining witness's seemingly inexplicable decision to exculpate someone who had tried to murder her. Similarly here, Dr. Bivens' testimony would help the jury understand why Minor would barter sexual contact for favors, rather than reporting the abuse.
Indeed, the Batangan court expressly recognized the importance of such testimony, explaining that "sexual abuse of children is a particularly mysterious phenomenon, and the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse." 71 Haw. at 557, 799 P.2d at 51
(internal quotation marks and citations omitted). Without Dr. Bivens' testimony, the jury would not have heard an explanation for Minor's "seemingly bizarre behavior" of passively permitting the abuse and accepting gifts from McDonnell. Id. at 558, 799 P.2d at 52 ; see also State v. Behrendt, 124 Hawai'i 90, 106, 237 P.3d 1156, 1172 (2010) (emphasizing "the importance of the need factor" in HRE Rule 403 balancing). In other words, "[t]he testimony helped to explain not only how a child molester could accomplish his crimes without violence, but also why a child victim would acquiesce and be reluctant to turn against her abuser." Jones v. United States, 990 A.2d 970, 978 (D.C. 2010). Therefore, Dr. Bivens' testimony was not only relevant, but was also highly probative of Minor's credibility.
We further disagree with McDonnell that Dr. Bivens' testimony on the abuse process constituted improper profile evidence. McDonnell argues that Dr. Bivens "planted the idea" that there are "scientifically identifiable traits" that differ between child molesters and normal men and that Dr. Bivens "was an expert in distinguishing between the two groups."
As noted by the D.C. Circuit:
In general, the "profile" label is not helpful in distinguishing admissible from inadmissible expert testimony. Instead, courts focus on the [applicable rules of evidence] and the purpose for which the evidence is offered: whether it is designed improperly to illuminate the defendant's character or propensity to engage in criminal activity, or whether instead it seeks to aid the jury in understanding a pattern of behavior beyond its ken.
United States v. Long, 328 F.3d 655, 666 (D.C. Cir. 2003).
Here, Dr. Bivens explicitly testified that "there is not" a typical child molester profile and that it is not possible to look at "demographic characteristics" or "personality characteristics" to determine whether someone is a child molester. Dr. Bivens did not know the specific facts of this case, and thus could not have tailored his testimony to unfairly prejudice or profile McDonnell as a child molester. Further, the State did not argue in closing that McDonnell was a child molester because he had certain characteristics or exhibited certain behaviors. Thus, McDonnell's argument that Dr. Bivens' testimony "provided the avenue for the jury to conclude that McDonnell was guilty merely because he fit the profile of a child molester" is unconvincing.
Similarly, Dr. Bivens' testimony did not constitute the use of profile evidence "as evidence of substantive guilt," as argued by the Dissent. Dissent at 312, 409 P.3d at 716. Child sexual abuse necessarily involves a victim and an abuser, and any expert account of the relationships within which such abuse occurs will inevitably make reference to both actors. That expert testimony describes the behavior of child sex abuse offenders does not automatically render the testimony inadmissible. Rather, the trial court must apply HRE Rule 403, weighing the probative value of such testimony against the risk that it will prejudice the defendant. The Dissent points to cases from other jurisdictions as evidence of the "inherently prejudicial" nature of such "profile evidence," but many of these cases actually counsel against a blanket prohibition on expert testimony regarding the behavior of child sexual abuse offenders. Dissent at 304, 409 P.3d at 708. See, e.g., People v. Williams, 20 N.Y.3d 579, 964 N.Y.S.2d 483, 987 N.E.2d 260, 263 (2013) ("Here, the admission of the expert's testimony concerning abusers' behavior that was relevant to explain the accommodation syndrome was a proper exercise of discretion."); People v. Robbie, 92 Cal.App.4th 1075, 112 Cal.Rptr.2d 479, 488 (2001) ("We do not hold that admission of profile evidence is reversible per se."); Kurtz v. Com., 172 S.W.3d 409, 414 (Ky. 2005) ("A careful review of these circumstances, when viewed in light of the entire record, compels us to deem the error in this case prejudicial....") (emphasis added).
Moreover, other jurisdictions have upheld the admission of similar expert testimony on the phenomena of child abuse as more probative than prejudicial. See, e.g., State v. Stafford, 157 Or.App. 445, 972 P.2d 47, 55 (1998) (upholding the admission of testimony regarding the "the cognizable behavior patterns of sex offenders as steps toward the ultimate completion of sexual abuse"); Perez v. State, 313 P.3d 862, 868 (Nev. 2013) ("As a general matter, we hold that whether expert testimony on grooming behavior is admissible in a case involving sexual conduct with a child must be determined on a case-by-case basis, considering the requirements that govern the admissibility of expert testimony."); United States v. Romero, 189 F.3d 576, 585 (7th Cir. 1999) (allowing expert testimony on the methods of "modern child molesters"); Long, 328 F.3d at 667-69 (allowing expert testimony on characteristic patterns of "preferential sex offenders," noting that "the average layperson lacks knowledge regarding the manner in which preferential sex offenders operate"); United States v. Hayward, 359 F.3d 631, 636-37 (3d. Cir. 2004) (allowing expert testimony that "elucidated the motives and practices of an acquaintance molester").
Accordingly, the family court did not abuse its discretion in admitting Dr. Bivens' testimony on the abuse process.
Lastly, McDonnell argues that the statistics mentioned by Dr. Bivens amounted to profile evidence. Specifically, McDonnell challenges the following three statistics: "[ (1) P]robably 80 percent of the time there's not physical force involved" in molestation, (2) "85 percent of the time ... the child has a pre-existing non-sexual relationship with their molester," and (3) in two studies, "100 percent of incest offenders report molesting in their own home."
The first statistic does not constitute improper profile evidence, as it does not describe any personal characteristics of abusers that can unfairly prejudice McDonnell. The statistic explains that the vast majority of child sexual abuse does not involve violence, which—similar to the abuse process testimony—helped the jury to understand the dynamics of the abuser-victim relationship.
In contrast, with regard to the second and third statistics, the risk of profiling McDonnell as an abuser was high because they implied a high statistical likelihood that abusers would exhibit certain characteristics, and those characteristics happened to fit McDonnell. The "85 percent" statistic implied that McDonnell was more likely to be an abuser because Minor was McDonnell's adopted father and she had a pre-existing non-sexual relationship with him. The "100 percent" statistic informed the jury that all abusers in the two studies who were related to their victims committed abuse in their homes. This presented a risk of misleading the jury into believing that, since McDonnell was both related to Minor and lived with her, McDonnell must have abused her in their home. Dr. Bivens could have testified generally that abusers are often related to their victims and that such abuse normally occurs in the home, but the use of statistics in this manner was unfairly prejudicial to McDonnell. Moreover, there was no curative instruction explaining to the jury that these statistics could not be used as profile evidence. As such, the family court erred in admitting this testimony.
The Dissent asserts that even the use of such non-numerical terms "inherently make generalizations regarding molester behavior based on the science of statistics." Dissent at 308 n.11, 409 P.3d at 712. We respectfully disagree. The Dissent appears to conflate testimony that could be interpreted as assigning a high numerical probability that the defendant sexually abused the complaining witness, which is inadmissible, with general testimony regarding the phenomenon of child sexual abuse, which may be allowed if it satisfies HRE Rule 403.
To mitigate the risk of prejudice to defendants in similar cases, we note generally that trial courts may wish to give a cautionary instruction to the jury following any expert testimony regarding the abuser-victim relationship. The instruction could clarify that the testimony can only be considered for the specific purpose of understanding the dynamics of the relationship, and not to profile the defendant as an abuser.
However, we find that the error in admitting the "85 percent" and "100 percent" statistics was harmless. See Hawai'i Rules of Penal Procedure (HRPP) Rule 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."). Error "should not be viewed in isolation and considered purely in the abstract," but "must be examined in light of the entire proceedings and given the effect to which the whole record shows it is entitled." State v. Sprattling, 99 Hawai'i 312, 320, 55 P.3d 276, 284 (2002) (internal quotation marks, citation, and brackets in original omitted). We "must determine whether there is a reasonable possibility that the error complained of might have contributed to the conviction." State v. Pauline, 100 Hawai'i 356, 378, 60 P.3d 306, 328 (2002) (internal quotation marks and citation omitted).
McDonnell was convicted under Count I for sexual assault in the first degree for inserting his finger in Minor's genital opening. Minor testified in detail to the first instance of abuse, in which she fell asleep in McDonnell's bedroom and she felt his hand move into her underwear, rub her vagina, and insert a finger into it. Minor testified that, later that day, she told Mother that McDonnell "had touched [her] that night." Mother corroborated Minor's testimony. Mother also testified that she confronted McDonnell, telling him "don't do that again because it's a crime" and told him to "apologize to [Minor]." She testified that McDonnell responded "yes." Dr. Lee further testified that he asked Minor whether her genitals were penetrated, and Minor stated that her vagina was penetrated by McDonnell's fingers. Thus, given the strength of this testimony, there was not a reasonable possibility that the "85 percent" and "100 percent" statistics contributed to McDonnell's conviction under Count I. Accordingly, the error in admitting the statistics was harmless.
IV. Conclusion
For the foregoing reasons, the ICA correctly concluded that the family court did not abuse its discretion in admitting Dr. Bivens' testimony. We therefore affirm the ICA's March 13, 2015 judgment on appeal.
Richard W. Pollack, Dissenting.
The State's expert witness, who testified "in the dynamics of child sexual abuse," informed the jury that a prerequisite to obtaining his Ph.D. was completion of his dissertation. This dissertation, noted the expert, compared a group of convicted child molesters to non-child molesters to distinguish traits "child molesters have that normal men don't have." The expert told the jury that child molesters are defined by their behaviors and that the typical child abuser lives in the child's home as part of a familial relationship; has a pre-existing, non-sexual relationship with the child; initially begins a healthy touching relationship with the child in advance of the sexual conduct; frequently commits the sexual abuse in the molester's home; commonly engages in the sexual abuse with others present in the home; often commits the sexual abuse when the child is asleep in bed; does not use physical force in perpetrating the abuse; and usually obtains sexual contact from the child in exchange for gifts or benefits.
All of these behaviors and characteristics of the typical child molester, as described by the expert, matched the allegations made by the child in this case. The majority concludes that the expert's testimony, which provided a template for the jury to evaluate and compare the child's allegations, was not profile evidence and was admissible as proferred by the State. I believe that this conclusion is incorrect and that the evidence as it was admitted by the family court was unfairly and overly prejudicial.
Additionally, when the defense challenged the expert testimony in this case, the family court declined to evaluate the probative value of the evidence against its unfair prejudicial effect as required by Hawai'i law. Instead, the family court applied a categorical rule that the evidence was admissible based on its misunderstanding of this court's decision in State v. Batangan, 71 Haw. 552, 799 P.2d 48 (1990). However, Batangan and the Hawaii Rules of Evidence require the exercise of judicial discretion in assessing the admissibility of such evidence, and, as noted by many courts, the existence of discretion requires its exercise. By failing to apply its discretion in this case, the family court prejudicially deprived the defendant to what he was statutorily entitled—a reasoned exercise of judicial discretion as to whether all or part of the expert's testimony should have been excluded. I would therefore hold that the family court prejudicially erred in failing to exercise its independent judgment as to whether to admit or exclude all or part of the expert testimony in this case.
I also disagree with the majority's unwarranted expansion of the ruling of this court in Batangan, 71 Haw. 552, 799 P.2d 48. The Batangan court did not contemplate the type of evidence presented in this case. The expert psychological testimony that the court sanctioned in Batangan pertained to the behavior of child victims of sexual abuse, which testimony the court determined was relevant and helpful to the jury in assessing the credibility of the child complainant in that case. 71 Haw. at 557-58, 799 P.2d at 51-52. Evidence that assists the jury in assessing a child witness's credibility must be distinguished from evidence that involves testimony regarding patterns of behavior or characteristics of a "typical molester," which was admitted against the defendant in this case. The Batangan court cautioned that any decision with respect to the admissibility of expert psychological testimony must be addressed with great care so as not to admit expert testimony that usurps the basic function of the jury, unduly influences the trier of fact, fails to meaningfully assist the jury, or does not make a fact of consequence to the proceedings more or less probable. Id. at 558, 562, 799 P.2d at 52, 54. Because the majority's decision in this case permits the admission of expert testimony contrary to these fundamental considerations and as evidence of a defendant's guilt, I also dissent for this reason.
I. The Family Court Did Not Make a "Judgment Call" Regarding the Admissibility of the Challenged Evidence
Over the defense's objection that the proffered expert testimony was unfairly prejudicial, the family court admitted the expert testimony, reasoning, "It's already been ruled by the Supreme Court, our very own Supreme Court in [ Batangan ] that it's admissible because Dr. Bivens' testimony is relevant and assist[s] the jury on this new found phenomena of child abuse." But this was not the ruling in Batangan, and, in fact, Batangan expressly required the family court to consider unfair prejudice in determining the admissibility of the expert testimony under Hawaii Rules of Evidence (HRE) Rule 403. 71 Haw. at 558, 799 P.2d at 52.
The Hawaii Rules of Evidence were adopted by the legislature and set forth in chapter 626 of the Hawaii Revised Statutes to "codify the law of evidence, to promote informed judicial rulings on evidence points, and to achieve uniformity in the treatment of evidence among the courts of this State." HRE Rule 100 cmt. (1993).
HRE Rule 403 specifies when relevant evidence may be excluded from admission:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
HRE Rule 403 (1993).
In Batangan, this court considered the admissibility of expert testimony regarding the behavior of child victims of sexual abuse that may undermine a child witness's credibility. 71 Haw. at 555, 799 P.2d at 50. Batangan explained that "the common experience of a jury, in most cases, provides a sufficient basis for assessment of a witness' credibility," and thus, the court observed, "expert testimony on a witness' credibility is inappropriate." Id. at 556-57, 799 P.2d at 51. Nonetheless, the court recognized that child victims of sexual abuse exhibit behavior that, although normal, may be interpreted by the jury as a sign that the child witness is not being truthful. Id. at 557-58, 799 P.2d at 51-52. The behavior discussed by the court in Batangan involved delayed reporting of the offenses and recantation of allegations of abuse. Id. The court noted that such behavior would normally "be attributed to inaccuracy or prevarication." Id. at 557, 799 P.2d at 51. "In these situations," the court concluded, "it is helpful for the jury to know that many child victims of sexual abuse behave in the same manner" when assessing the child witness's credibility. Id. at 557, 799 P.2d at 52.
Although Batangan recognized that expert testimony regarding the behavior of child victims of sexual abuse that undermine the child witness's credibility may be admitted under HRE Rule 702, id. at 558, 799 P.2d at 52
HRE Rule 702 provides the following:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.
HRE Rule 702 (1993).
, such evidence is not indiscriminately admissible. Rather, testimony of this nature remains subject to the applicable requirements of the Hawaii Rules of Evidence, including HRE Rules 702, 401, and 403. Id. at 562, 799 P.2d at 54. Indeed, recognizing "that even this type of expert testimony carries the potential of bolstering the credibility of one witness and conversely refuting the credibility of another," Batangan advised that "[c]ourts must proceed with caution in admitting expert testimony in these cases." Id. at 558, 562, 799 P.2d at 52, 53-54. The Batangan court noted that, in evaluating such testimony under HRE Rule 702, the trial court must find that the witness is an expert, the testimony is relevant, the testimony will assist the jury in comprehending something not commonly known or understood, and the testimony does not include opinions that "in effect usurp the basic function of the jury." Id. at 562, 799 P.2d at 54. Additionally, Batangan emphasized that "[t]he pertinent consideration is whether the expert testimony will assist the jury without unduly prejudicing the defendant." Id. at 558, 799 P.2d at 52 (emphasis added); see also State v. Kony, 138 Hawai'i 1, 11, 375 P.3d 1239, 1249 (2016) (emphasizing that "Batangan does not exempt expert testimony concerning child sexual abuse victims from the weighing required by HRE Rule 403").
Notwithstanding these strong warnings from the Batangan court and the mandatory applicability of HRE Rule 403, the family court in this case admitted expansive expert testimony relating both to the credibility of child victims of sexual abuse and the types of "child molestation behaviors" exhibited by typical offenders, reasoning in a motion in limine proceeding that it had already been ruled on by this court and was thus automatically admissible under Batangan:
THE COURT: It's already been ruled by the Supreme Court, our very own Supreme Court in Batingang [sic] that it's admissible because Dr. Bivens's testimony is relevant and assist[s] the jury on this new found phenomena of child abuse.
When the defense renewed its objection to Dr. Bivens' testimony as unduly prejudicial at trial, the court overruled the objection and likewise stated that the testimony had "some relevance":
THE COURT: In following Batangan and State versus Silva... the expert testimony in Silva explained the girl's, perhaps, bizarre behavior like going back into the room. I don't know. So, over your objection, there is some relevance in some expert testimony to assist the jurors with scientific and complex type of issue. Okay. So over your objection.
Thus, in response to McDonnell's objections that the evidence was unfairly prejudicial, the family court admitted the evidence on relevancy grounds without addressing its potential of producing an unfairly prejudicial effect.
However, relevancy analysis inquires only whether the evidence has "any tendency" to prove a fact of consequence, which is "an exceedingly low threshold for this initial ... barrier to admissibility." Addison M. Bowman, Hawaii Rules of Evidence Manual § 401-3[1] (2014-2015 ed.). In pointed contrast, evidentiary decisions that assess the risk of unfair prejudice of evidence under HRE Rule 403 require a careful "judgment call" based on an application of a court's informed discretion. Costales v. Rosete, 133 Hawai'i 453, 466, 331 P.3d 431, 444 (2014) (quoting Tabieros v. Clark Equip. Co., 85 Hawai'i 336, 350-51, 944 P.2d 1279, 1293-94 (1997) ).
Moreover, " '[t]he existence of discretion requires its exercise[,]' and a court fails to properly exercise its discretion when it bases a decision on categorical rules, and not on the individual case before it." State v. Hern, 133 Hawai'i 59, 65, 323 P.3d 1241, 1247 (App. 2013) (second alteration in original) (quoting United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983) ); accord State v. Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975)
("Discretionary action must be exercised on a case-by-case basis, not by any inflexible [blanket] policy of denial."). By extension, once HRE Rule 403 is invoked, "the trial judge has no discretion as to whether or not to engage in the balancing process." Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (en banc) (quoting 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5250, at 544–45 (1978) ).
This case does not involve an incorrect or faulty HRE Rule 403 analysis, but, rather, a failure to engage in the requisite balancing altogether. Both during the motion in limine proceeding and at trial, the family court did not address McDonnell's contention that the probative value of the testimony would be substantially outweighed by its unfair prejudicial effect. Rather, the trial court applied the "exceedingly low threshold" of relevancy, Bowman, supra, § 401-3[1], and found that the testimony had "some relevance" and was therefore admissible. Although the defense's objection was based on HRE Rule 403 rather than rules relating to relevancy, the family court did not mention or address the potentially unfairly prejudicial nature of the testimony. And the court further compounded its error by basing its evidentiary ruling on a categorical misapplication of the Batangan decision, stating, "It's already been ruled by the Supreme Court, our very own Supreme Court in Batingang [sic] that it's admissible". Thus, in response to McDonnell's HRE Rule 403 objection, the family court failed to exercise its discretion based on an appraisal of probative value and unfair prejudice in favor of applying a categorical rule that the evidence was relevant and admissible based on its misreading of Batangan.
The majority agrees that the trial court "must apply HRE Rule 403, weighing the probative value of [the] testimony against the risk that it will prejudice the defendant." Majority at 296, 409 P.3d at 700. However, the majority contends that the court's reliance on Batangan"does not mean that it abdicated its discretion" but, rather, indicates that "the court considered relevant precedent" in deeming Dr. Bivens' testimony admissible. Majority at 290, 409 P.3d at 694. It also seeks to distinguish this case from Hern, 133 Hawai'i at 65, 323 P.3d at 1247, and Martin, 56 Haw. at 294, 535 P.2d at 128, arguing that the court in this case did not "rely on a blanket policy." Majority at 290, 409 P.3d at 694.
The family court's reference to Batangan demonstrates that it cited applicable legal authority in rendering its admissibility determination. However, rather than heed the Batangan court's instruction that the "pertinent consideration is whether the expert testimony will assist the jury without unduly prejudicing the defendant," 71 Haw. at 558, 799 P.2d at 52, the court failed to consider or weigh the unfairly prejudicial nature of Dr. Bivens' testimony. Instead of "exercising its discretion based on the particular circumstances" of McDonnell's case, id., the court based its determination on a categorical rule that Batangan deemed such evidence to be somewhat relevant and thus admissible. Such automatic "adherence to predetermined rigid conduct," Martin, 56 Haw. at 294, 535 P.2d at 128, is precisely what Hern and Martin prohibit.
Because the family court did not make a judgment call when it admitted Dr. Bivens' testimony, there is no discretionary decision for this court to review. It is elementary that we cannot defer to the trial court's discretion in admitting evidence where the court made no "judgment call" regarding the evidence. See Martin, 56 Haw. at 294, 535 P.2d at 128. The family court did not exercise its discretion regarding whether to limit Dr. Bivens' testimony or to exclude it entirely pursuant to a Rule 403 balancing, thereby depriving McDonnell of a critical statutory requirement designed to ensure a fair trial. Consequently, the conviction should be vacated and the case remanded for a new trial.
When a trial court fails to exercise its discretion, there is no "judgment call" for an appellate court to defer to, and the appropriate conclusion is a determination that the trial court committed error. See, e.g., Fassberg Constr. Co. v. Hous. Auth. of L.A., 60 Cal.Rptr.3d 375, 416, 152 Cal.App.4th 720 (2007) ; State v. Starr, 365 N.C. 314, 718 S.E.2d 362, 365 (2011) ("[T]here is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion as to the question presented." (alteration in original)). A failure to exercise discretion, such as in failing to apply a Rule 403 balancing, therefore requires that the conviction be vacated and the case remanded for a new trial unless the error is harmless beyond a reasonable doubt. See, e.g., State v. Shippee, 176 Vt. 542, 839 A.2d 566, 571 (2003) (stating that a party challenging a court's Rule 403 decision would prevail if the party can prove that the trial court "completely withheld its discretion," and vacating and remanding); Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 928 (2d Cir. 1977) (concluding that because the trial judge did not engage in Rule 403 balancing in the first instance, the case must be remanded to the district court for the purpose of making a Rule 403 determination).
II. The Court Erred in Admitting Profile Evidence
"Scientific and expert testimony, with their 'aura of special reliability and trustworthiness,' courts the danger that the triers of fact will 'abdicate their role of critical assessment' and 'surrender their own common sense in weighing testimony.' " State v. Batangan, 71 Haw. 552, 556, 799 P.2d 48, 51 (1990) (alterations omitted) (first quoting United States v.Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973) ; second quoting State v. Brown, 297 Or. 404, 687 P.2d 751, 773 (1984) ; and then quoting United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986) ). Although expert testimony may be admissible in child sexual abuse cases to explain the seemingly bizarre behavior of child victims that would otherwise reflect poorly on a complaining witness's credibility, see Batangan, 71 Haw. at 557-58, 799 P.2d at 51-52, courts must be cautious in admitting expert psychological testimony that crosses the line into impermissible profile evidence relating to behaviors and characteristics of "the typical offender." The position taken by the majority in this case broadens the scope of Batangan significantly in a manner that invades the province of the jury and allows for consideration of profile evidence that is unfairly and overly prejudicial to defendants. Such extension of Batangan is contrary to the prudent advisement that courts "must proceed with caution in admitting expert testimony in these cases," which, although difficult to prove, "are equally difficult to defend against." Id. at 562, 799 P.2d at 53-54 (emphasis added).
A. Expert Testimony and Profile Evidence
Profile evidence "describes sets of observable behavioral patterns" specific to a "typical offender." 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 7:11 (4th ed. Supp. 2016) [hereinafter, Mueller & Kirkpatrick, Federal Evidence ]; see also People v. Robbie, 112 Cal. Rptr. 2d 479, 484 (Cal. Ct. App. 2001) (defining "profile" as "a collection of conduct and characteristics commonly displayed by those who commit a certain crime"). Although "profiles" may be most commonly used by law enforcement as an investigative tool in identifying crime suspects, "testimony describing profiles of typical offenders ... should generally be excluded" at trial. Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11. Exclusion is particularly important where "the evidence relates to the defendant ... and is offered to prove guilt." Id.
Notably, even the use of profile evidence as a purely investigative tool by law enforcement is subject to strict limitations in this jurisdiction. See, e.g., State v. Trainor, 83 Hawai'i 250, 258-59, 925 P.2d 818, 826-27 (1996) (holding that law enforcement may not initiate investigative stops based solely on the conclusion that the suspect's characteristics and behaviors match a "drug courier profile," in part because the profile described "an enormous set of presumably innocent travelers").
The admission of profile evidence against a defendant raises serious concerns about the proper role of expert psychological testimony in criminal prosecutions. "[A] criminal trial is concerned with individual guilt, and not with 'the sort of person' that certain behavioral patterns often describe." id.; see also United States v. Banks, 36 M.J. 150, 161 (C.M.A. 1992) (rejecting use of profile evidence as evidence of defendant's substantive guilt and noting that "[o]ur system of justice is a trial on the facts, not a litmus-paper test for conformity with any set of characteristics, factors, or circumstances"). "Every defendant has a right to be tried based on the evidence against him or her," and the use of profile evidence by the State may encourage a jury to infer guilt based solely on the fact that the defendant is alleged by the complainant to have engaged in behaviors or exhibited characteristics that match the relevant profile. United States v. Hernandez-Cuartas, 717 F.2d 552, 555 (11th Cir. 1983) ; see also State v. Kony, 138 Hawai'i 1, 12, 375 P.3d 1239, 1250 (2016) ("[T]he idea of reasonable doubt requires proof connecting the defendant to the crime and does not permit proof that a defendant is more likely to be guilty because he or she may share characteristics or traits with discrete populations of offenders."). Indeed, profile evidence "implies that criminals, and only criminals, act in a given way" and often belies the fact that "certain behavior may be consistent with both innocent and illegal behavior." Robbie, 112 Cal.Rptr.2d at 485, 92 Cal.App.4th 1075. Use of profile evidence against a defendant may therefore erode the presumption of innocence in criminal trials and impede the defendant's ability to mount a defense.
Profile evidence may also be used to impermissibly enhance the credibility of the complaining witness, insofar as jurors may infer that the witness is telling the truth regarding abuse because certain behaviors or characteristics of the defendant, as testified to by the complainant, match the "typical offender" behaviors described by an expert witness. See Kony, 138 Hawai'i at 12, 375 P.3d at 1250 (observing that "expert testimony regarding the common behavior of child sexual abuse victims 'carries the potential of bolstering the credibility' " of the witness (quoting Batangan, 71 Haw. at 556, 799 P.2d at 51 )); see also People v. Williams, 20 N.Y.3d 579, 964 N.Y.S.2d 483, 987 N.E.2d 260, 263 (2013) (eliciting testimony from an expert witness to show that the victim's version of events matches that of a typical abuse scenario has "the prejudicial effect of implying that the expert found the testimony of this particular complainant to be credible—even though the witness began his testimony claiming no knowledge of the case before the court"); State v. Transfiguracion, No. SCWC-11-0000048, 2013 WL 1285112, at *6 (Haw. Mar. 28, 2013) (Order Rejecting Application for Writ of Certiorari) (Acoba J., dissenting) (observing that expert testimony on patterns of committing child sexual abuse and the characteristics of child molesters may bolster the complaining witnesses' credibility because "the expert's testimony could 'guide the jury to a conclusion' that the complaining witnesses were telling the truth by demonstrating that the details in their testimony matched the details in a typical child abuse case").
In addition to increasing the credibility of the complaining witness, the near or perfect match of the behaviors testified to by the complainant and those related by the expert may serve to bolster the expert's own credibility. Jurors may be particularly struck when an expert witness asserts having no direct knowledge of the asserted facts in the case but testifies to behaviors that provide nearly an exact match to the complainant's testimony of events, thereby increasing the "possibility that the jury may be unduly influenced by the expert's opinion." See Batangan, 71 Haw. at 556, 799 P.2d at 51 (quoting State v. Kim, 64 Haw. 598, 607, 645 P.2d 1330, 1337 (1982), overruled in part by Batangan, 71 Haw. 552, 799 P.2d 48 ).
The inherent prejudice stemming from the admission of profile testimony as substantive evidence of a defendant's guilt has been analogized to the prejudice that inheres when character evidence or prior bad acts are used to show that a defendant has a propensity to engage in certain criminal behaviors. See Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11 (noting that "a criminal trial is concerned with individual guilt" and that "profile evidence is very much like character evidence" when offered to prove guilt). Reliance on a defendant's character or prior acts to establish that the defendant committed the offense charged is generally prohibited under state and federal rules of evidence, because although such facts might "logically be persuasive that [the defendant] is by propensity a probable perpetrator of the crime," the evidence may "so overpersuade [the jury] as to prejudge one with a bad general record and deny [the defendant] a fair opportunity to defend against a particular charge." Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 4.11, at 183 (4th ed. 2009) [hereinafter, Mueller & Kirkpatrick, Evidence ] (quoting Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 93 L.Ed. 168 (1948) ).
With a few limited exceptions, HRE Rule 404(a) prohibits the admission of character evidence to prove propensity, while HRE Rule 404(b) excludes evidence of other acts to prove that the defendant acted in conformity therewith. See HRE Rule 404 (1993). HRE Rule 404 provides in relevant part as follows:
(a) Character evidence generally. Evidence of a person's character or a trait of a person's character is not admissible for the purpose of proving action in conformity therewith on a particular occasion ....
....
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.
HRE Rule 404 (1993).
Authoritative expert testimony regarding child sexual abuse may likewise encourage jurors to "abdicate their role of critical assessment," Batangan, 71 Haw. at 556, 799 P.2d at 51 (alterations omitted) (quoting Brown, 687 P.2d at 773 ). An invitation by an expert witness to reason that "criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal," risks usurping the role of the jury and denying the defendant a fair opportunity to defend against the government's case in the same way that use of character or prior acts evidence risks "ovepersuad[ing]" the trier of fact and impeding the defendant's ability to defend against the charge. Mueller & Kirkpatrick, Evidence, supra, § 4.11, at 183 (quoting Michelson, 335 U.S. at 475-76, 69 S.Ct. 213 ). Indeed, the policy concerns with regard to character evidence and profile evidence are so similar that several courts have deemed profile evidence inadmissible on the ground that it constituted improper character or prior acts evidence.
Robbie, 112 Cal.Rptr.2d at 485, 92 Cal.App.4th 1075.
See, e.g., State v. Hester, 114 Idaho 688, 760 P.2d 27, 33-34 (1988) (expert testimony regarding the common traits of child molesters and that the defendant exhibited those traits was inadmissible character evidence, because the "evidence that [the defendant] exhibited character traits similar to those of known child abusers" was used to "prove that [the defendant] acted in conformance with those traits in this particular instance"); State v. Nelson, 501 S.E.2d 716, 718, 720-22 (S.C. 1998) (concluding that evidence of children's toys and other similar evidence seized from defendant's bedroom combined with expert testimony that pedophiles often "have a pretty good stash" of childlike items was excludable character evidence, and rejecting State's argument that this evidence was "relevant to show motive or intent" and observing that this argument was "a cleverly disguised way of asserting [that the defendant] committed the crimes because [the defendant] has a propensity to commit sexual offenses"); Ballard v. Hunt, 235 W.Va. 100, 772 S.E.2d 199, 204 (2015) (holding "that the opinion evidence of an expert witness proffered by the State in a criminal prosecution, merely to show that the accused has the character trait of a pedophile ... is inadmissible ... to prove that on a particular occasion the accused acted in accordance with that character trait").
Accordingly, the use of profile evidence as indicative of a defendant's substantive guilt is "inherently prejudicial." Robbie, 112 Cal.Rptr.2d at 485, 92 Cal.App.4th 1075. Decisions of other jurisdictions that have considered expert psychological testimony in sexual abuse cases are instructive of when such testimony takes on the form of impermissible profile evidence. These cases recognize that expert testimony becomes profile evidence when the testimony describes the behavioral patterns of offenders, rather than relaying the psychological characteristics of victims, and the courts have precluded the evidence's admission at trial.
In Robbie, a California appellate court addressed testimony of an expert qualified in "the behaviors and conduct of persons who commit sexual assaults." 112 Cal.Rptr.2d at 483, 92 Cal.App.4th 1075. The expert testified about the behaviors of sexual assault offenders, focusing particularly on the common absence of force and the lack of physical resistance on the part of victims. Id. at 483-84, 92 Cal.App.4th 1075. The expert in Robbie never directly opined on whether the defendant was a sex offender but instead responded to a series of hypothetical questions posed by the prosecution that correlated with the complaining witness's description of the events. Id. The court concluded that the expert's testimony amounted to improper profiling testimony. Id. at 488, 92 Cal.App.4th 1075. The Robbie court observed that reliance on profile evidence is "unfair[ ]" and "inherently prejudicial" because "[t]he jury is improperly invited to conclude that, because the defendant manifested some characteristics, he committed a crime." Id. at 485, 487, 92 Cal.App.4th 1075. The effect of the expert testimony in Robbie was not to help the jury evaluate the prosecution's evidence; rather, the testimony led the jury to the conclusion that "[the] defendant was guilty because he fit the profile." Id. at 487, 92 Cal.App.4th 1075. This "significantly bolstered" the complaining witness's testimony and was thus "highly prejudicial" to the defendant. Id. at 488, 92 Cal.App.4th 1075.
The Supreme Court of Kentucky has similarly ruled that expert testimony regarding the typical habits and characteristics of child sexual abuse perpetrators was inadmissible in Kurtz v. Commonwealth, 172 S.W.3d 409, 413 (Ky. 2005). The expert in Kurtz testified that perpetrators of sexual abuse of a child tend to be a family member or close friend of the victim and that it is common for the perpetrator to groom the victim by providing praise, gifts, and economic assistance as a way to break down the victim's defenses. Id. at 413. The expert further testified that it was not unusual for perpetrators to abuse only some of the children of a household, which makes it more likely that the victim would keep it secret. Id. The court concluded that the testimony "regarding the typical sex abuse perpetrator unmistakably touched on both the habits and the profile characteristics of that class of individuals which we have held is not relevant or permissible for the jury to consider during the Commonwealth's case-in-chief." Id. at 414.
The court also rejected the prosecution's contention that a portion of the expert testimony was offered in rebuttal of anticipated arguments and evidence to be presented by the defendant; the court noted that "there is absolutely no authority for the concept of 'preemptive rebuttals.' " Kurtz, 172 S.W.3d at 414.
Likewise in Hall v. State, an Arkansas appellate court considered expert testimony regarding the dynamics of child sexual abuse, including the percentage of cases in which the perpetrator is known to the child ahead of time, is a relative or friend of the family, and has authority over the children. 15 Ark.App. 309, 692 S.W.2d 769, 770-71 (1985) ; see State v. Ketchner, 236 Ariz. 262, 339 P.3d 645, 648 (2014) (citing Hall approvingly for the proposition that courts have precluded expert testimony relating to persons who sexually abuse children). The expert also testified regarding the percentage of child sexual abuse cases that occur in the home and common characteristics of perpetrators. Hall, 692 S.W.2d at 770, 773. The expert stated that she had not personally examined any of the individuals involved in the case and that the information she would give was based primarily on national statistics. Id. at 771. The Arkansas court concluded that "this type [of] evidence was not of proper benefit to the jury in this case" and that "it was not introduced to rebut a misconception about the presumed behavior of a rape victim but to prove ... that the circumstances and details in this case match the circumstances and details usually found in child abuse cases." Id. at 773. The court noted that although testimony concerning the vocabulary used by young children was beneficial to the jury, much of the expert's testimony concerning the dynamics of child abuse was "distractive and prejudicial." Id.
The Oregon Supreme Court has also held that expert testimony offered to explain a child's denial of the alleged abuse could not include testimony regarding grooming techniques used by child abusers. State v. Beauvais, 357 Or. 524, 354 P.3d 680, 693 n.14 (2015) (discussing approvingly the court's decision in State v. Hansen, 304 Or. 169, 743 P.2d 157 (1987) ). Although testimony pertaining to the typical responses of sexually abused children may assist the trier of fact in understanding a child complainant's behavior, "the specific techniques used by some child abusers 'to get close to the victim,' which may result in the child's emotional dependence on the abuser, are irrelevant to the effect the dependence has on the child's willingness to implicate the abuser." Id. (quoting Hansen, 743 P.2d at 157 ). This is so because "[i]t is the emotional dependence, not the specific acts that produce it, that helps to explain the child's behavior." Id. (quoting Hansen, 743 P.2d at 157 ). Because an expert may describe the common behaviors of victims without reference to the "victimization process" and the typical behaviors of offenders, such evidence is irrelevant "and, as such, rarely will pass the balancing test" for prejudice, confusion, or delay. Id. (quoting State v. Stevens, 328 Or. 116, 970 P.2d 215, 223 (1998) ).Similarly, a Washington appellate court deemed inadmissible expert testimony that a majority of child abuse cases involved a biological, male parent. State v. Maule, 35 Wash.App. 287, 667 P.2d 96, 99 (1983) ; accord State v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 180 (1984) (citing Maule approvingly and holding that expert testimony regarding the percentage of cases involving a perpetrator with a preexisting relationship with the child was highly prejudicial even when made in the context of explaining delayed reporting), modified on other grounds by State v. Kitchen, 110 Wash.2d 403, 756 P.2d 105 (1988). The Washington court rejected the State's contention that the evidence was merely buttressing the expert's qualifications, observing that the testimony was offered as substantive evidence to help persuade the jury that the defendant was guilty. Maule, 667 P.2d at 99. The court noted that the expert testimony matched the circumstances of the defendant and complaining witness in the underlying case and explained that "[s]uch evidence invites a jury to conclude that because the defendant has been identified by an expert with experience in child abuse cases as a member of a group having a higher incidence of child sexual abuse, it is more likely the defendant committed the crime." Id. The court noted that, like all relevant evidence, the admissibility of the testimony must be determined pursuant to Washington's evidence rule relating to prejudice, confusion, and waste of time. Id. at 99-100.
The Florida Supreme Court has similarly rejected expert evidence "about common characteristics of the home environment where child sexual abuse occurs and about the characteristics of abusers." Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993). The court concluded that the evidence was not permitted as "background information," noting that "the courtroom is not a classroom to be used to educate a jury on an entire field only tangentially related to the issues at trial." Id. at 829. It also concluded that the testimony was "completely inappropriate as substantive evidence of guilt." Id. The court observed that "[i]f anything, [the] profile evidence tended to show that because [the defendant] and his house had certain traits which fit [the expert's] child sex offender profile, [the defendant] necessarily sexually abused his daughter." Id. The court observed that this mode of proof would be akin to establishing that a defendant has a certain character trait in order to show that he acted in conformity with that trait, which is "forbidden by the rules of evidence." Id.
These cases and many others establish that expert evidence explaining psychological characteristics or behaviors of victims must be distinguished from profile evidence that describes behavioral patterns of offenders. Courts have precluded the admission of such profile evidence against a defendant on a variety of grounds, including on the basis that the evidence lacks relevancy, that it is unfairly prejudicial, that it constitutes impermissible character or prior bad acts evidence, or that it does not assist the trier of fact to understand the evidence or determine a fact in issue under rules relating to expert witness testimony. See Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11 (observing that profile evidence is "condemned sometimes on relevancy grounds" but noting its similarity to character evidence); Burnette v.Commonwealth, 60 Va.App. 462, 729 S.E.2d 740, 749 n.5 (2012) (noting that "numerous jurisdictions have held that profile evidence is categorically inadmissible, though the underlying rationales differ widely" and identifying relevancy, unfair prejudice, and impermissible character evidence as possible grounds).
B. Dr. Bivens' Testimony Included Profile Evidence
In its motion in limine to admit Dr. Bivens' testimony, the State initially proffered Dr. Bivens as an expert who would testify regarding the characteristics and conduct of child sexual abuse victims to assist the jury in assessing Minor's credibility as it related to her "delayed and inconsistent reporting." At the subsequent hearing on the parties' motions in limine, however, the State identified the scope of Dr. Bivens' testimony as much broader and stated that he would testify to "the general dynamics of child sexual abuse." Thereafter, in response to McDonnell's renewed objection to the admission of Dr. Bivens' testimony at trial, the State indicated that Dr. Bivens would testify to "the process of child molestation" in general.
At trial, Dr. Bivens was qualified as an expert in clinical psychology with a subspecialty in child sexual abuse. In qualifying Dr. Bivens as an expert witness, the testimony focused on his expertise in the common characteristics and methods of "child molesters." Dr. Bivens described his Ph.D. dissertation as follows:
So my dissertation compared a group of convicted child molesters to a group of men who were matched for the same age and same ethnicity and same general background but were not child molesters, and then we administered test data to distinguish some of the traits that child molesters have that normal men don't have.
Consistent with his expertise in identifying "the traits that child molesters have that normal men don't have" and in child sexual abuse generally, Dr. Bivens gave testimony regarding three general areas: the characteristics and conduct of child sexual abuse victims, the behaviors and characteristics of "child molesters," and the child sexual abuse process. As illustrative of the difference between evidence allowable under Batangan in contrast to profile evidence that should be excluded, each of these three categories of testimony will be discussed.
i. Testimony on Characteristics and Behaviors of Child Sexual Abuse Victims
Dr. Bivens testified as to the "typical response for a child who is in a sexually abusive situation" and the reasons underlying delayed reporting and incomplete disclosures by such children. Dr. Bivens further explained the common experience of "tunnel memory" that causes a child victim's recollection of a traumatic event to be blurred or incomplete.
McDonnell challenged Dr. Bivens' testimony regarding delayed reporting, incompleteness of reporting, and tunnel memory on relevancy grounds.
This testimony falls within the general parameters of evidence found admissible in Batangan, insofar as it may have helped dispel the jurors' misconceptions regarding child sexual abuse victims resulting from an imposition of "standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion." 71 Haw. 552, 557, 799 P.2d 48, 51 (1990) (quoting State v. Moran, 728 P.2d 248, 251 (Ariz. 1986) ). Such evidence may have assisted the trier of fact in assessing Minor's testimony, as delayed reporting and incomplete reporting may be "seemingly inconsistent with behavioral norms of other victims of assault." Id. at 557, 799 P.2d at 51. Accordingly, Batangan suggests that this testimony may have been admissible at trial subject to HRE Rule 403 and other rules of evidence. Id. at 558, 799 P.2d at 52.
ii. Testimony on Characteristics of Child Molesters
Dr. Bivens also testified regarding identifiable characteristics of child sexual abuse offenders. Specifically, Dr. Bivens discussed the following with respect to the typical individual most likely to be culpable for sexually abusing a child:
• In "the vast majority" of cases, or "85 percent of the time," the child has a "preexisting nonsexual relationship with their molester."
• Abused children "generally know[ ] the abuser."
• There is a "documented phenomenon" of incest that occurs when "the molester is living in the child's own home" and "is somehow affiliated with the family, whether they're a direct blood member or stepparent."
• "100 percent of incest offenders report molesting in their own home," and child sexual abuse in general "usually" occurs in the child's home or the offender's home.
Thus, Dr. Bivens identified that in the vast majority of child sexual abuse cases, the perpetrator is likely an individual who has a preexisting relationship with the child, is affiliated in some way with the child's family, is living in the child's home, and will abuse the child in the offender's home. Dr. Bivens further stated that it "is not possible" to look at an individual's "demographic[s]" to determine whether or not the individual is a "child molester," but that "[c]hild molesters are defined by" the attendant behaviors. In other words, child molesters cannot be identified by demographics such as age, ethnicity, or race; rather, child molesters are defined by their behaviors, such as where the offender lives, where the abuser commits the offense, and other patterns of behavior discussed in greater detail below.
This testimony of Dr. Bivens does not relate to or explain the "seemingly bizarre" behavior of child sexual abuse victims to address issues relating to a child witness's credibility. Batangan, 71 Haw. at 558, 799 P.2d at 52. Rather, Dr. Bivens' testimony describes behaviors and characteristics common to child sexual abuse offenders. See People v. Robbie, 112 Cal.Rptr.2d 479, 484, 92 Cal.App.4th 1075 (2001) (defining "profile" as "a collection of conduct and characteristics commonly displayed by those who commit a certain crime").
The profile testimony in this case goes far beyond the type of evidence recognized by Batangan as admissible. Relying on the "aura of special reliability and trustworthiness" of Dr. Bivens' testimony, the jurors may well have concluded that
Batangan, 71 Haw. at 556, 799 P.2d at 51 (quoting United Statesv. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973) ).
(1) child sexual abuse offenders typically have a preexisting relationship with the child, are related to the child, and have access to or live in the child's home;
(2) McDonnell had a preexisting relationship with Minor, was related to Minor, and lived in the home together with Minor; therefore,
(3) McDonnell may have, possibly, or likely sexually abused Minor.
See Robbie, 112 Cal.Rptr.2d 479 at 487, 92 Cal.App.4th 1075 ; see also State v. Petrich, 101 Wash.2d 566, 683 P.2d 173, 180 (1984) (rejecting testimony that in "eighty-five to ninety percent of our cases, the child is molested by someone they already know" because it "invite[d] the jury to conclude" that a defendant was "statistically more likely to have committed the crime"), modified on other grounds by State v. Kitchen, 110 Wash.2d 403,756 P.2d 105 (1988). Expert testimony of this nature invades the province of the jury to evaluate the evidence and creates a risk of confusion, as it focuses the jury's attention on innocuous circumstances as evidence that the abuse occurred. It also invites the jury to conclude that because McDonnell was identified by an expert with experience in child abuse cases as "a member of a group having a higher incidence of child sexual abuse," State v. Maule, 35 Wash.App. 287 , 667 P.2d 96, 99 (1983), it is more likely that McDonnell committed the offenses charged. Thus, this portion of Dr. Bivens' testimony falls well outside the scope of the evidence deemed admissible in Batangan, and its un fair, overly prejudicial nature required its exclusion at trial under HRE Rule 403.
The majority acknowledges that the "risk of profiling" McDonnell as an abuser based on Dr. Bivens' testimony relating to the characteristics of a typical offender was "high" because its use of probabilities "implied a high statistical likelihood that abusers would exhibit certain characteristics, and those characteristics happened to fit McDonnell." Majority at 297, 409 P.3d at 701. Thus, according to the majority, this evidence "presented a risk of misleading the jury." Majority at 297, 409 P.3d at 701.
The majority contends, however, that Dr. Bivens could have "testified generally" to the characteristics of abusers, such as "abusers are often related to their victims and ... such abuse normally occurs in the home," so long as he did not rely on statistics. Majority at 297, 409 P.3d at 701 (emphases added). Though such testimony would not include numerical percentages, statements of typical offender characteristics or that offenders "often" or "normally" engage in particular conduct inherently make generalizations regarding molester behavior based on the science of statistics. See, e.g., State v. Kony, 138 Hawai'i 1, 12 n.15, 375 P.3d 1239, 1250 n.15 (2016) (recounting Dr. Bivens' testimony in that case that percentages are used to "give[ ] a general idea of, you know, how the phenomenon most often occurs"). Had Dr. Bivens stated that "abusers are often related to their victims" and that the abuse "normally occurs in the home," Majority at 297, 409 P.3d at 701 (emphases added), the jury may still have been misled "into believing that, since McDonnell was both related to Minor and lived with her, McDonnell must have abused her in their home." Majority at 297, 409 P.3d at 701. Therefore, replacement of statistical percentages in an expert's testimony with adjectives intended to convey the same information (i.e., "often" or "normally" in lieu of "85%") serves only to make a change in form, and the testimony's inherently prejudicial substance remains.
iii. Testimony on the Abuse Process
Dr. Bivens also testified regarding "the abuse process," identifying four primary methods "being typical of most molestations," including: "[s]educing and testing, masking sex as a game, emotional and verbal coercion, and taking advantage of a child in a vulnerable position." As the source of his understanding of these four primary methods, Dr. Bivens cited to "convicted molesters themselves ... describing how they go about doing the abuse." Dr. Bivens then went on to describe each of the four methods in detail.
Dr. Bivens testified that "[s]educing and testing refers to how a molester will establish a healthy touching relationship with a child" and then slowly incorporate sexual touching into that relationship. The child may "simply allow the touching." In this scenario, the molester will "tell [himself]" that "the child likes it" and "the child wants [him] to continue."
Dr. Bivens elaborated that masking sex as a game is similar to seducing and testing, except that this method starts with a "playful touch relationship," such as "tickling" and "wrestling." Thereafter, the abuser incorporates sexual touching into the relationship. Dr. Bivens stated that "[t]he molesters often report that, Well, I would have stopped if the child objected, but they didn't object, and so I just kept going."
With respect to emotional and verbal coercion, Dr. Bivens described that the child molester will bargain with or bribe the child for sexual contact. The molester may give the child treats or gifts or withhold punishment as a sort of "quid pro quo exchange." The child may "feel like [he or she is] part of" the bargaining process and "willing[ly] participate[s] in the sex in order to either get the reward or avoid the punishment." The molester may also rely on "guilt tripping" to obtain sex from the child.
Finally, Dr. Bivens testified that that the fourth method, whereby an abuser will "tak[e] advantage of a child in a vulnerable position," "most often" refers to approaching and sexually abusing a sleeping child. Dr. Bivens described that the child victim may in fact be awake, but that the victim "play [s] possum because [the child] didn't know what to do, and the sex offense continues in that fashion." Dr. Bivens related that "the offenders frequently report that they would have stopped if the child had put up a fight," but because the child victim does not resist, the perpetrator "continue[s] offending."
During his testimony, Dr. Bivens stated that child victims will "frequently acquiesce to what the molester is doing and they will tend to go along with it." He also stated that in general, "probably 80 percent of the time there's not any real physical force involved" in child sexual abuse situations and that "more than half of child molesters who were willing to talk about their crime admitted to committing acts of molestation with other people present."
Dr. Bivens' testimony on the abuse process "describe[d] sets of observable behavioral patterns" specific to a "typical [child sexual abuse] offender," thus constituting profile evidence. Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11 (emphasis added). Significantly, a primary source for the "typical" abuse process was information provided directly by child sex molesters who had disclosed their own personal crimes in a research study. Such evidence did not properly assist the trier of fact in this case in determining whether McDonnell committed the crimes with which he was charged. See State v. Clements, 244 Kan. 411, 770 P.2d 447, 454 (1989) (stating that expert testimony detailing the characteristics and behaviors "of the individual who typically sexually abuses children did not assist the jury in determining if the child was sexually abused," and "the only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one"); State v. Stevens, 328 Or. 116, 970 P.2d 215, 223 (1998) (concluding that expert testimony on child sexual abuse may not "provid [e] details of the victimization process" because they are "irrelevant ... and, as such, rarely will pass the balancing test" of probative value versus risk of unfair prejudice).
Rather, Dr. Bivens' testimony on the abuse process facilitated a showing that "the circumstances and details in this case match[ed] the circumstances and details usually found in child abuse cases." Hall v. State, 15 Ark.App. 309,692 S.W.2d 769, 773 (1985). While Dr. Bivens may not have been aware of the facts of this case, the prosecution was. By the nature of the questions asked on direct examination, the State was able to line up Dr. Bivens' testimony with Minor's testimony; indeed, as McDonnell forcefully describes in his appellate brief, Dr. Bivens' description of the abuse process established a near blueprint of the conduct charged by the State.
McDonnell gave multiple examples of consistencies between the facts of this case and Dr. Bivens' testimony in his opening brief:
This case involved no physical force. Dr. Bivens testified that "probably 80 percent of the time there's no physical force involved" in molestation.
McDonnell had a pre-existing non-sexual relationship with [Minor]. Dr. Bivens testified that "85 percent of the time ... the child has a pre-existing non-sexual relationship with their molester."
McDonnell was [Minor]'s adoptive father. Dr. Bivens testified that "there's a documented phenomenon called incest when the molester is living in the child's own home [and] is somehow affiliated with the family, whether they're a direct blood member or stepparent or an uncle that's living in the home[.]"
[Minor] testified to assaults that all happened at home. Dr. Bivens testified that "100 percent of incest offenders report molesting in their own home."
[Minor] testified that McDonnell assaulted her when her mother was at home. Dr. Bivens testified that "more than half of child molesters ... admitted to committing acts of molestation with other people present[.]"
[Minor] described having a healthy relationship with McDonnell. Dr. Bivens testified that "a molester will establish a healthy touching relationship with a child in advance of any sexual contact."
[Minor] alleged that McDonnell would trade sexual contact for "benefits." Dr. Bivens testified that molesters use emotional and verbal coercion, "if you give me this, I'll give you that," to "obtain sex from the child."
[Minor] alleged that the first time McDonnell assaulted her, she was asleep in his bed. Dr. Bivens testified that molesters will take advantage of a child in a vulnerable position, which "most often refers to approaching a sleeping child."
(Internal citations omitted) (formatting altered).
Further, Dr. Bivens' testimony on the typical abuse process invited the jury to "abdicate [its] role of critical assessment" and to assume that because "criminals act in a certain way," and because the defendant was alleged to have "acted that way," "the defendant is a criminal." Robbie, 112 Cal.Rptr.2d 479 at 485, 92 Cal.App.4th 1075. The near identical match between Dr. Bivens' testimony on the typical abuse process and Minor's account of events also unquestionably bolstered Minor's credibility as a complaining witness. In turn, Minor's description of the abuse may have also bolstered the credibility of Dr. Bivens himself, as the jury was presented with the testimony of a child alleged to have been sexually abused that matched the testimony of the psychologist who was qualified by the court as an expert in identifying patterns of sexual abuse. The jury may also have considered Minor's statements to give more credence to Dr. Bivens' qualifications as an expert in the dynamics of child sexual abuse or otherwise found it to enhance his "aura of special reliability and trustworthiness." Batangan, 71 Haw. at 556, 799 P.2d 48, 51 (1990) (quoting United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973) ).
Batangan, 71 Haw. at 556, 799 P.2d at 51 (quoting State v. Brown, 297 Or. 404, 687 P.2d 751, 773 (1984) ).
In summary, the profile evidence in this case was pervasive within, and a significant part of, Dr. Bivens' abuse process testimony. The testimony provided a near identical match to the allegations of Minor, which increased the risk that the jury would improperly assume McDonnell's guilt because he was alleged to have acted in a manner consistent with a "typical child molester." The matching testimony also posed a danger that Minor's credibility as a complaining witness would be inappropriately bolstered, that Dr. Bivens' testimony would be given greater weight, and that the jury would be unduly influenced by the expert's testimony. Accordingly, the profile evidence testified to by Dr. Bivens presented an unacceptable risk of unfair prejudice to McDonnell, and HRE Rule 403 required its exclusion.
a. The Majority Erroneously Concludes that the Abuse Process Testimony Was Admissible in This Case
The majority contends, however, that Dr. Bivens' testimony on the abuse process did not constitute profile evidence. Majority at 38. To support this conclusion, the majority relies on Dr. Bivens' statements that there is not a typical child molester profile and that it is not possible to look at an individual's "demographic characteristics" to "determine whether someone is a child molester." Majority at ––––.
The majority thus maintains that despite Dr. Bivens informing the jury that his dissertation compared a group of convicted child molesters to non-child molesters to distinguish traits "child molesters have that normal men don't have," and despite providing the jury with a template of the typical behaviors of molesters that matched the allegations in this case, Dr. Bivens' testimony did not constitute profile evidence. Majority at –––– – ––––. However, Dr. Bivens' testimony indisputably described to the jury in great detail the behaviors and characteristics of a typical child molester, and, as such, constituted profile evidence. See Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11 (defining profile evidence); Robbie, 112 Cal. Rptr. 2d at 483 (same).
See also supra Part II.A. (defining profile evidence as evidence of the behaviors and characteristics of a typical offender, discussing its inherently prejudicial nature, and analyzing cases from multiple jurisdictions that have determined profile evidence to be inadmissible in sexual abuse cases).
Additionally, profile evidence is not limited to demographic characteristics, and although Dr. Bivens indicated that it is not possible to look at a person's demographic or personality characteristics to determine whether that person is a child abuse offender, he was definitive in his testimony that child sexual abusers are defined by a common set of "behaviors." As stated, "profile evidence" describes both characteristics and "sets of observable behavioral patterns," Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11 (emphasis added), or "a collection of conduct" engaged in by a typical offender, Robbie, 112 Cal.Rptr.2d at 484, 92 Cal.App.4th 1075 (emphasis added). Although there may be differences between profile evidence based on behaviors rather than on demographic or immutable personal characteristics, both types of profile evidence present a serious risk of bolstering the complaining witness's credibility and invading the province of the jury. This is particularly true where, as was the case here, the profile behaviors testified to by the expert provided nearly an exact match to the child complainant's testimony. Thus, the fact that the profile evidence contained in Dr. Bivens' abuse process testimony was derived from behaviors rather than demographic characteristics is of no import in regard to its classification and its underlying nature as inherently prejudicial profile evidence.
As additional support for its argument that Dr. Bivens' testimony was not profile evidence, the majority states that the prosecution "did not argue in closing that McDonnell was a child molester because he had certain characteristics or exhibited certain behaviors." Majority at ––––. However, the prosecution need not identify testimony as "profile evidence" for it to be, in fact, such evidence. Further, the admissibility of evidence does not depend on how the State characterizes it in closing argument.
Instead of identifying extensive portions of Dr. Bivens' testimony as improper profile evidence, the majority finds that Dr. Bivens' testimony on the abuse process was admissible because it touched on the "behavior exhibited by some offenders and the ways in which children react to that behavior." Majority at ––––. The majority elaborates that testimony on child sexual abuse will "inevitably make reference" to both victim and abuser, and it further argues that the fact that "expert testimony describes the behavior of child sex abuse offenders does not automatically render the testimony inadmissible." Majority at ––––.
However, Dr. Bivens' abuse process testimony predominantly centered on the conduct and thought processes of the typical offender as related by child sexual abusers. Although the testimony may have inferentially provided information on how a child sexual abuse victim responds to an offender's actions, Dr. Bivens' description of the abuse process unquestionably focused on "convicted molesters themselves ... describing how they go about doing the abuse."
Further, the mere fact that expert testimony may reference the general ways in which children react to abuse does not render testimony regarding the abuse process categorically or presumptively admissible. Although the Batangan court deemed admissible evidence of the behavior of child sexual abuse victims that would otherwise be "attributed to inaccuracy or prevarication" and reflect poorly on a complaining witness's credibility, the court emphasized that "[t]he pertinent consideration is whether the expert testimony will assist the jury without unduly prejudicing the defendant." 71 Haw. at 558, 799 P.2d at 52 (emphasis added). In this case, the expert testimony regarding the abuse process overwhelmingly centered on the molester's behaviors and thought processes, was relayed from the molester's point of view, and only tangentially referred to behaviors of child victims that could be "attributed to inaccuracy or prevarication." Id. at 557, 799 P.2d at 51. These aspects of Dr. Bivens' abuse process testimony are highly significant in conducting an analysis of probative value versus risk of unfair prejudice under HRE Rule 403.
The majority asserts, however, that the need for evidence on the abuse process was "strong" in this case and that the testimony was "highly probative of Minor's credibility," thus suggesting that the probative value of the testimony would not be substantially outweighed by the risk of unfair prejudice under HRE Rule 403. Majority at 295, 296, 409 P.3d at 699, 700. Specifically, the majority contends that "there was no other evidence available to explain Minor's behavior of not actively resisting the abuse, and indeed, seemingly acquiescing by engaging in a pattern of trading sexual contact for things she wanted." Majority at 295, 409 P.3d at 699. The majority also analogizes Dr. Bivens' statements to expert testimony on delayed and inconsistent reporting of child sexual abuse victims and to expert testimony on recantations of abuse by domestic violence victims. See Batangan, 71 Haw. at 557, 799 P.2d at 51 ; State v. Clark, 83 Hawai'i 289, 298-99, 926 P.2d 194, 203-04 (1996) (permitting an expert in domestic violence to testify that victims of domestic violence commonly recant their allegations against their accuser).
The majority's analysis is problematic for several reasons. First, as discussed above, although Dr. Bivens' abuse process testimony included tangential references to the behavior of victims, this portion of the testimony indisputably focused on the behavioral patterns specific to a "typical offender." See Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11. Indeed, the references to victims' responses to typical molester conduct were overwhelmingly relayed from the viewpoint of the perpetrator. The majority gives little consideration to the inherently and unfairly prejudicial nature of these aspects of Dr. Bivens' testimony, which identified sets of observable behavioral patterns specific to a "typical offender" and was used against McDonnell as evidence of substantive guilt. Any balancing analysis assessing profile evidence under HRE Rule 403 must account for the high risk of unfair prejudice resulting from such evidence, and, given the nature of the profile evidence in this case, HRE Rule 403 required its exclusion for the reasons discussed. Second, the scope of Dr. Bivens' abuse process testimony was far broader than reasonably necessary to explain Minor's behavior of acquiescing to the abuse. Rather than detailing at length how "convicted molesters" "describ[e] how they go about doing the abuse," Dr. Bivens could have simply testified that it is not uncommon for victims of child sexual molestation to not resist the abuse.
See Batangan, 71 Haw. at 557, 799 P.2d at 51 ; Clark, 83 Hawai'i at 298-99, 926 P.2d at 203-04.
Even if a court determines that expert testimony containing characteristics and behaviors of a typical offender is admissible under HRE Rule 403, the court would be required to give a limiting instruction to the jurors informing them that the testimony may only be used to assist their understanding of the complaining witness's testimony and may not be used as evidence of the defendant's guilt. See HRE Rule 105 (1993) (authorizing the court to issue a limiting instruction upon request when the jury is authorized to consider evidence for one purpose but not another); State v. Murray, 116 Hawai'i 3, 18-19, 21, 169 P.3d 955, 970-71, 973 (2007) (stating that a limiting instruction pursuant to HRE Rule 105 may be necessary "to prevent potential prejudice to a defendant" and concluding that although the defendant did not request such an instruction, the trial court erred in failing to instruct the jury that certain evidence could only be relied on for a limited purpose); see also United States v. Lui, 941 F.2d 844, 847-48 (9th Cir. 1991) (district court abused its discretion when it admitted prejudicial drug courier profile evidence as substantive evidence of defendant's guilt and failed to provide the jurors with a "limiting instruction to prevent them from using the profile evidence as a basis for finding guilt").
Finally, the majority submits that other jurisdictions have found expert testimony on the "phenomena of child abuse" to be admissible, and it points to several decisions in which courts have concluded that such testimony is admissible as evidence relating to the modus operandi of criminal offenders. See United States v. Long, 328 F.3d 655, 666-67 (D.C. Cir. 2003) (determining that expert testimony on the common characteristics and patterns of sexual abuse offenders was admissible as modus operandi evidence); United States v. Romero, 189 F.3d 576, 584-87 (7th Cir. 1999) (same); United States v. Hayward, 359 F.3d 631, 636-37 (3rd Cir. 2004) (same). Majority at 296–97, 297, 409 P.3d at 700–01, 701.
Although evidence of an individual's prior acts are generally prohibited as evidence of a propensity to engage in certain criminal behaviors, see supra note 5, the Hawaii Rules of Evidence permit the use of modus operandi testimony regarding a prior act, crime, or wrong in order to prove that the same individual committed the act at issue in the present litigation. See HRE Rule 404(b) (1993); see also Bowman, supra, § 404-3[2][E] (noting that modus operandi testimony "typically 'goes to identity' " (quoting State v. Veikoso, 126 Hawai'i 267, 277, 270 P.3d 997, 1007 (2011) )). Evidence of modus operandi includes proffers where the features and methods attendant to a prior act are so "strikingly similar" to those of the act being litigated that a reasonable inference could be made that both were committed by the same individual. Bowman, supra, § 404-3[2][E] (quoting HRE Rule 404 cmt.). The admission of evidence under the modus operandi exception requires "much more ... than crimes of the same class, such as armed robberies of banks," and "[t]he similarities must be 'so unusual and distinctive as to be like a signature.' " Bowman, supra, § 404-3[2][E] (first quoting HRE Rule 404 cmt.; then quoting McCormick, Evidence 190 (2d ed. 1972) ).
In Romero, for example, expert testimony on the methods of "modern child molesters" was deemed admissible as evidence of modus operandi. 189 F.3d at 585. According to the Romero court, the testimony constituted evidence of modus operandi because it "was helpful to the jury in understanding how child molesters operate—something with which most jurors would have little experience." Id. However, characterizing such testimony as evidence of modus operandi is contrary to its application under Hawai'i law. See HRE Rule 404 cmt. (identifying modus operandi evidence as "a species of 'identity' proof" and noting that "the characteristics and methodology of the prior crime or act may be so strikingly similar to those of the crime or act being litigated as to support the inference that both were the handiwork of the very same person").
In this case, Dr. Bivens' expert testimony on the abuse process did not seek to prove that a prior sexual offense and the abuse of the complaining witness were "the handiwork of the very same person." Bowman, supra, § 404-3[2][E] (quoting HRE Rule 404 cmt.). Instead, Dr. Bivens' testimony sought to identify the behaviors of a class of typical offenders to prove the guilt of a defendant who is constitutionally presumed innocent. Thus, admission of Dr. Bivens' abuse process testimony as evidence of modus operandi is inconsistent with this jurisdiction's application of the Hawaii Rules of Evidence with regard to such evidence.
Further, even if the modus operandi exception of HRE Rule 404(b) were transformed by this court to expansively encompass behavioral patterns not of the same person but of the "typical child molester," expert testimony on the behaviors of offenders in the abuse process would not be helpful to the jury under the circumstances of this case. For example, one of the most common types of expert testimony used to establish modus operandi is drug courier profile evidence. See generally United States v. Lim, 984 F.2d 331, 335 (9th Cir. 1993) (discussing the use of drug courier profile evidence). Such testimony "can describe historical background and patterns of organized crime in a relevant geographic area[ ] that can help appraising a series of criminal acts that would otherwise lack the context that is necessary for a complete understanding." Mueller & Kirkpatrick, Federal Evidence, supra, § 7:9. Although drug courier profile evidence has been deemed admissible on the basis that it assists the jury in understanding how a series of seemingly innocuous behaviors may in fact be a criminal act, the acts constituting the sexual abuse as alleged by the complaining witness in this case do not require context for an understanding of their illegality.
Moreover, evidence of modus operandi admitted under HRE Rule 404(b) requires an assessment of probative value versus risk of unfair prejudice under HRE Rule 403. See, e.g., State v. Renon, 73 Haw. 23, 31-32, 828 P.2d 1266, 1270 (1992) (when evidence of prior bad acts is determined to be relevant, the court must then balance the evidence's probative value against its "prejudicial impact" under HRE Rule 403 ); State v. Basham, 132 Hawai'i 97, 114, 319 P.3d 1105, 1122 (2014) (same). Thus, even assuming that the modus operandi exception of HRE Rule 404(b) could be inordinately extended to encompass the profile evidence contained in Dr. Bivens' testimony, the testimony would nonetheless be subject to and excluded by the balancing required under HRE Rule 403 for the reasons stated.
Finally, the majority characterizes the position of this opinion as arguing for a "blanket prohibition on expert testimony regarding the behavior of child sexual abuse offenders." Majority at 296, 409 P.3d at 700. However, as stated, evidence objected to on the basis that HRE Rule 403 mandates its exclusion requires the trial court to conduct a considered balancing of the evidence's probative value and risk of unfair prejudice. This balancing must be informed by "the particular circumstances" of each case, State v. Hern, 133 Hawai'i 59, 65, 323 P.3d 1241, 1247 (App. 2013), and the court must not rely on "any inflexible [blanket] policy" in determining admissibility, State v. Martin, 56 Haw. 292, 294, 535 P.2d 127, 128 (1975). However, in conducting this analysis as applied to proffered expert testimony on child sexual abuse, the court must be wary of the high risk of unfair prejudice which is inherent in evidence of the typical behaviors and characteristics of child sexual abuse offenders.
The majority further contends that other jurisdictions have upheld the admission of expert testimony on the child sexual abuse process "as more probative than prejudicial." Majority at 296, 409 P.3d at 700. Of the decisions cited by the majority in support of this proposition, only three reference the relevant testimony's probative worth and risk of unfair prejudice. In State v. Stafford, the court deemed evidence of typical behaviors of child sexual abuse offenders "relevant" because it was used to rebut the defendant's defense at trial that his conduct "was not intended as grooming behavior"; the court did not, however, address the possible prejudice arising from the testimony. 157 Or.App. 445, 972 P.2d 47, 52 (1998). The court in Long likewise rejected the possibility that such testimony was unduly prejudicial, but on grounds that did not speak to the testimony's unfairly prejudicial nature. 328 F.3d at 668 (noting that the testimony was "offered for a permissible purpose," that the prosecution "adduced considerable other evidence of [the defendant's] pedophilia," that the jury was instructed to independently determine the testimony's weight, and that a lack of statistics included in the testimony was of no import). Similarly, in Perez v. State, the court simply noted that "[a]s to unfair prejudice," the testimony "did not stray beyond the bounds set by this court and other jurisdictions for expert testimony," and it further stated that the expert "did not offer an opinion as to the victim's credibility or express a belief that she had been abused." 313 P.3d 862, 868-69 (Nev. 2013).
While it is true that some courts have admitted expert testimony on child sexual abuse over objections based on unfair prejudice, the decisions cited by the majority contain, at best, only a superficial analysis of the unfairly prejudicial nature of the testimony. It is imperative under our jurisprudence, however, that a trial court conduct a thorough inquiry into the relative probative value of the testimony as measured against its risk of unfair prejudice in light of the particular facts in a given case. Therefore, the majority's reliance on these cases is misplaced.
III. CONCLUSION
The profile evidence admitted in this case was a near identical match to the complaining witness's testimony regarding the sexual abuse alleged and demonstrates the inherent dangers of admitting such evidence against a defendant. The evidence created an extreme risk that the jury would improperly conclude that Minor must be telling the truth based on Dr. Bivens' descriptions of the typical behaviors of a child molester, which were supported by studies and statistics. The use of profile evidence also redirected the focus away from "individual guilt" and towards " 'the sort of person' that certain behavioral patterns" describe as typical of child sexual abusers. Mueller & Kirkpatrick, Federal Evidence, supra, § 7:11. Just as our courts would be hesitant to allow evidence of prior acts to demonstrate a defendant's propensity in a child sexual abuse case, we should also not permit evidence that seeks to link the prior acts of other offenders, as collected by psychological studies, to prove a particular defendant's guilt. In light of the high risk of unfair prejudice that resulted from the admission of the profile evidence in this case, its exclusion was required under HRE Rule 403. Permitting the admission of such profile evidence under the guise of this court's decision in State v. Batangan, 71 Haw. 552, 799 P.2d 48 (1990), constitutes an unwarranted and unwise expansion of the ruling in that case.
The conviction in this case should therefore be vacated on two grounds. First, the family court abdicated its discretion in analyzing and ruling on the admissibility of Dr. Bivens' testimony under HRE Rule 403, critically depriving McDonnell of that to which he was statutorily entitled: an informed discretionary ruling that balanced the probative value of Dr. Bivens' testimony against its unfairly prejudicial effect. Second, the family court's indiscriminate admission of the entirety of Dr. Bivens' testimony, which focused in large part on the behaviors and thought processes of typical child molesters, was unfairly prejudicial to McDonnell and deprived him of a fair trial. Accordingly, I dissent.
The family court's errors in failing to conduct the balancing required by HRE Rule 403 and in admitting Dr. Bivens' testimony in its entirety were not harmless. As noted by Judge Reifurth in his concurring and dissenting opinion in this case, "the evidence against McDonnell was not overwhelming." At trial, the State presented no witnesses who observed the abuse, and its case depended almost entirely on the credibility of Minor. Given the enhancement of Minor's credibility by the perfect match between her allegations and the "typical" abuse process, as testified to by an expert witness "in the dynamics of child sexual abuse," there is a "reasonable possibility" that the court's errors regarding the admission of Dr. Bivens' testimony contributed to McDonnell's conviction. State v. Pauline, 100 Hawai'i 356, 378, 60 P.3d 306, 328 (2002) (quoting State v. White, 92 Hawai'i 192, 198, 990 P.2d 90, 96 (1999) ).
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Michael D. Wilson